You Looking at Me? Video Doorbell Cameras Trigger Privacy Concerns and Potential Liability Risks
Video doorbells (VDs), hugely popular and increasingly ubiquitous, enable homeowners to see, record and communicate with visitors at their door, answer the door remotely when they are away, discourage thieves from stealing packages or video them if they do, and notice when the teen who’s supposed to be in at 10 doesn’t cross the threshold until after midnight. But this undeniably useful technology (“Ring” is probably the best-known) can also expose owners to invasion of privacy complaints, potentially creating liability risks for condo associations that, plaintiffs might contend, permit the violations.
The privacy concerns are real. Two years ago, Massachusetts Senator Edward Markey complained about Ring (probably the best known of the VD devices), saying its policies “are an open door for privacy and civil liberty violations…the lack of privacy and civil rights protections for innocent households is nothing short of chilling,” he warned.
A British court recently fined a homeowner more than $100,000, ruling that the owner’s video and audio recording illegally captured “personal data” of the owner’s neighbor. “The extent of range to which these devices can capture audio is well beyond the range of video that they capture, and in my view cannot be said to be reasonable for the purpose for which the devices are used by the defendant, since the legitimate aim for which they are said to be used, namely crime prevention, could surely be achieved by something less,” the judge ruled.
Much closer to home, the Massachusetts Supreme Judicial Court (SJC) ruled that a plaintiff who complained that the video surveillance cameras his neighbor had installed violated his privacy rights had made a “plausible claim” that should have defeated a motion to dismiss the case.
Key Concerns
The decision in this 2014 case (Polay v. McMahon) cites several factors courts will consider in evaluating whether video recording devices represent an ‘unreasonable infringement” on an owner’s “reasonable expectations” of privacy, and whether the privacy rights of individuals outweigh the safety arguments for installing the video devices. The critical factors the court identified are: The means used to record images and the underlying purpose of the recording.
Massachusetts courts, including this SJC decision, have not specifically addressed VD cameras. But we can extrapolate from this decision and others two general principles that can guide boards wrestling with the issue:
· Owners must have a legitimate purpose for installing doorbell cameras. Preventing the theft of packages left at their door would qualify; spying on their neighbor would not.
· The means of recording should be no more intrusive than necessary, with privacy risks mitigated as much as possible.
On the means question, the court in Polay found the use of multiple cameras pointed directly at the plaintiff’s home and recording continually to be unreasonably intrusive. The single camera triggered by motion in a VD device would not seem to raise the same concerns.
It is probably better if the camera doesn’t record continuously, but even if it does, as long as the purpose is legitimate and the device is positioned in the least intrusive location possible, it would probably pass muster with a court. We can’t guarantee this, of course, since we don’t yet have a video-doorbell-related precedent on which to rely. But this guidance seems to fall within the framework the SJC outlined in Polay.
Security vs. Privacy
The “legitimate purpose” question seems fairly straightforward. As a general rule, concerns about doorstep thefts would be less persuasive in an apartment-style development, where packages are left at a front desk, than in a town-home development, where deliveries would be left at an owner’s door. In an apartment style building, the privacy concerns of individuals recorded by doorbell cameras would seem to outweigh the security concerns of owners who want to install them. Also, with units located next to and across from each other, it will be more difficult to angle the cameras so they don’t impinge on the privacy of other owners and visitors who don’t want to be recorded.
Boards clearly have the authority to reject VD installations, among other reasons, because they would probably violate architectural guidelines prohibiting devices attached to the exterior of an owner’s unit. But just because the board has the authority to do something doesn’t necessarily mean it should. And while the privacy concerns about doorbell cameras are real, so is the increasing demand for them.
Boards that bar doorbell video systems may infuriate large numbers of owners who want them. They may also be sued by residents who suffer thefts or break-ins that, they will argue, the doorbell cameras would have prevented.
There are liability risks on the other side as well. Residents who allege privacy violations may sue not only the owners who install VDs but the boards that permit the installations. With doorbell cameras as with all decisions boards make, there are no foolproof liability safe harbors.
Reducing Liability Risks
We think boards would prevail both against plaintiffs complaining that their VD installations were prohibited and those complaining that the installations invaded their privacy. But it is always better to avoid these legal battles, if you can. The following suggestions will help boards minimize their liability risks.
Require owners to obtain board permission for VD installations, but don’t adopt detailed written guidelines for the devices. You want the board to have the flexibility it needs to address the complexities and specific concerns that might arise with individual requests.
Grant approvals in writing as revocable licenses, which the board can revoke at any time for any reason, including misuse of the devices. The licensing agreement should require owners to locate VD devices and aim cameras in ways that mitigate as much as possible the privacy concerns of others. Following the decision by the British court, noted earlier, Amazon issued a statement saying: “We strongly encourage our customers to respect their neighbors’ privacy and comply with any applicable laws when using their Ring product.” Amazon made that a request; boards should make it a requirement.
The licensing agreement should require owners to indemnify the board. This won’t prevent plaintiffs from including boards in suits filed against VD owners, but it will insulate boards somewhat from those actions
Notify residents that doorbell cameras are being installed, putting them on notice that they might be recorded incidentally. Specifically notify immediate neighbors who are most likely to be affected, so they can express any concerns before the installation is approved.
If you reject a request, have solid reasons for doing so.
Before adopting a policy prohibiting VD installations in the community, gauge owner demand for them. Strong demand would suggest that a blanket ban probably isn’t the best idea.
Written by
Mark Einhorn