Does your Home Security System Violate the Wiretap Statute? I don’t think so, but Massachusetts courts have not yet decided.

Published on: September 19, 2019

Technology is changing our environment in so many ways, it’s difficult to keep up. This is especially true in the home security business. I’m constantly hearing ads about the newest ways to monitor your home while you are away, or how to sync your surveillance cameras with your phone to watch your pets all day at work. There are obvious advantages to these new systems – I love the idea of making sure no one takes the holiday presents I ordered from my patio. But, does your surveillance system violate wiretap laws?

Imagine this scenario: your neighbor walks in front of your doorbell camera and it activates. Your neighbor then starts a conversation within earshot of the doorbell camera. As the homeowner, you are alerted to this activity and can open up the app on your phone. With the two-way communication feature, you can talk to your neighbor, or just listen to the conversation. Does this recording violate wiretap laws?

The Massachusetts wiretap law makes it a crime to secretly record a conversation (subject to some recently carved out exceptions for public officials performing their duties in public). The wiretap law also provides a private right of action to a citizen who believes his privacy rights were violated by a secret recording. The wiretap law is the Legislature’s attempt to strike a balance between law enforcement’s need to use modern methods of surveillance to combat sophisticated crime, and the citizenry’s right to privacy. The question being posed to the court is whether your home security device, which can pick up audio, is capable of creating a prohibited secret recording. As always, technology is way ahead of our legal system. As more and more homeowners install these systems, they do so with no clear answer on how a court will treat the recording of people at the other end of your doorbell without their knowledge.

A review of recent case law, however, can shed light on how a court might rule on the issue. It seems clear that it is not illegal to openly record what someone is saying in a public place. You can probably walk around holding up your smart phone, catching everything it can see and hear, because what you are doing is obvious. Everyone is aware of a smart phone’s capabilities. Is a doorbell with a camera inside obvious? If everyone else is hearing those ads about the latest developments in home security, maybe it is.

Recent decisions demonstrate that the court will think about what privacy rights will be protected if it is illegal to have doorbell cameras. Clearly, no one is installing these cameras to pick up otherwise private conversations. People are installing them to talk to a delivery person, or the parent dropping off your pre-teen from soccer practice. Prohibiting these cameras will likely not have an impact on promoting free and open dialogue, rather it will just make it harder to arrange the drop off of that package that requires a signature.

Ultimately, I think the courts will decide this question using practical considerations. Most of what we do now is caught on camera, whether we like it or not. People are aware that these new home security systems exist, and that if they approach someone’s home, there is a chance, probably a pretty good chance, that they are being recorded. It could go either way, but your brand new doorbell cam is probably ok.

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