HOA and Condo Associations Balance Security and Privacy Concerns with Electronic Surveillance
This article appears in the May / June issue of Community Assets, the official publication of the Pennsylvania & Delaware Valley Chapter of Community Associations Institute
It seems security cameras are virtually everywhere. Especially in public places, our movements and conversations are routinely being monitored and recorded. While we have come to expect these devices at the bank, in traffic and at Starbucks, they are also becoming more prevalent at home – within condominium and community associations. Whether in the clubhouse, the parking lot or our neighbor’s front door, eyes (and ears) may thus be upon us. However, all is not safe in the name of “security”; the installation of recording devices by an association, as well as the grant of permission to unit owners to do so, both implicate privacy and liability concerns.
Not too long ago, recording devices were mostly the tools of spies and law enforcement. We have all seen organized crime movies or courtroom dramas, where the “smoking gun” is an audio recording of a bad guy admitting his guilt. No matter how incriminating, however, unless legally obtained, the recording may not be admissible; the result is that the bad guy walks. The consequence of an improper recording is not limited to its inadmissibility in the courtroom. Individuals who violate applicable laws may be subject to civil or criminal liability. Oversimplified, criminal statutes governing electronic surveillance are generally known as wiretap laws. In addition to the Federal Wiretap Act (18 U.S.C. 2510), varying State statutes govern and criminalize electronic surveillance. Individual causes of action and civil liability also arise in States which recognize claims for invasion of privacy.
Section 2511 of the Federal Wiretap Act makes it illegal to “intentionally intercept…any wire, oral or electronic communication.” Although various exceptions apply, most notable is the following:
(d) It shall not be unlawful under this chapter for a person not acting under color of law to intercept a wire, oral, or electronic communication where such person is a party to the communication or where one of the parties to the communication has given prior consent to such interception unless such communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of any State.
Based upon the foregoing, it is NOT a violation of the Federal Wiretap Act to record any conversation 1) to which you are a party or 2) where one of the parties has given their consent. The Federal Wiretap Act is thus known as a one-party consent law. New Jersey is likewise a one-party consent state, the New Jersey Wire Tapping and Surveillance Control Act [N.J. Stat. Ann §2A:156A-2, 156A—4(d)] containing an exemption substantially identical to the Federal Wiretap Act.
Pennsylvania is among those known as two-party consent states. Pursuant to Section 5703 of Pennsylvania’s Wiretapping and Electronic Control Act (18 Pa.C.S. Section 5701), a person is guilty of a felony in the third degree if he:
(1) intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept any wire, electronic or oral communication;
(2) intentionally discloses or endeavors to disclose to any other person the contents of any wire, electronic or oral communication, or evidence derived therefrom, knowing or having reason to know that the information was obtained through the interception of a wire, electronic or oral communication; or
(3) intentionally uses or endeavors to use the contents of any wire, electronic or oral communication, or evidence derived therefrom, knowing or having reason to know, that the information was obtained through the interception of a wire, electronic or oral communication.
An exception applies under Section 5704(4), “where all parties to the communication have given prior consent to such interception”. Pennsylvania thus requires the consent of all participants in a conversation before recoding is permitted. Consent may be actual or implied. An announcement made before recording takes place may be sufficient – presumably, if one continues to participate in discussions once notice of recording is given, they do so knowing that they are being recorded. However, even absent consent, Pennsylvania law does not protect all communications. Section 7501 defines “oral communication” as [a]ny oral communication uttered by a person possessing an expectation that such communication is not subject to interception under circumstances justifying such expectation … Accordingly, in order to establish a violation of Pennsylvania’s wiretap law, the speaker must be able to demonstrate a reasonable expectation of privacy, i.e. an expectation that the conversation would not be recorded.
In addition to criminal penalties under applicable wiretapping laws, actions for injunctive relief and damages may lie in the civil court system. Pennsylvania recognizes a claim for “intrusion upon seclusion”, an intentional intrusion upon the seclusion of a person’s private concerns which was substantial and highly offensive to a reasonable person, where the information disclosed would have caused mental suffering, shame or humiliation to a person of ordinary sensibilities. Remedies are similarly available for invasion of privacy under New Jersey law.
Surveillance laws seek to balance competing interests: 1) The ability of law enforcement and individuals to protect society and themselves from criminal or civil harm; vs 2) protecting individuals from governmental or private intrusions of privacy. Clearly, notions of privacy are neither constant nor objective. Especially since invention of the internet and smart phones, the concept of what is private has substantially changed. Expectations of privacy thus depend upon time and circumstance. Society recognizes that cameras are not permitted in bathrooms or locker rooms. It is also agreed that audio and video recording in another person’s home constitute invasions of privacy. Of course, this does not mean all outdoor activity is fair game. Most would object to a neighbor pointing a camera at their front door. Relevant is the “expectation” of privacy, requiring subjective analysis.
In condominium and community association settings, residents cannot reasonably expect privacy in common areas such as elevators and clubhouses. Although consent may not be required under those circumstances, security cameras are often purposely mounted to be seen, in some cases accompanied by signage advising that recording is in progress. Such signage serves as an additional deterrent against bad behavior. (If installing signage, care should be taken not to create a false sense of security. If footage is merely recorded for future review – the sign should not imply live monitoring by security personnel). Security cameras should be directed to capture only public areas and should routinely be checked for proper operation. Boards should also adopt written policies concerning access to (by the association, management, law enforcement and civil litigants), retention of, and destruction of recordings.
Similar analysis applies to unit owner installed security and doorbell cameras. These should be mounted to capture only portions of the unit or public areas. While not problematic in all settings, such cameras may “intrude” upon the privacy of neighbors in shared condominium hallways (by capturing when they enter and leave their unit, by whom they are accompanied, their conversations with others or while on their cell phone). Research has not revealed clear guidance on whether audio recording by doorbell cameras violates wiretapping laws. In two-party consent states, signage may be appropriate. It may also be true that with widespread use of these devices, it is no longer reasonable to expect privacy in front of our neighbor’s door. As stated above, the expectation of privacy depends upon the circumstances. The foregoing factors should be considered by residents when installing cameras, and by boards when deciding whether to grant permission to do so. If appropriate, board approval to install these devices should contain a statement clearly placing responsibility for compliance with wiretapping and privacy laws on the applicant. Absent a board’s ability to verify such compliance, a disclaimer will not only mitigate liability, it will remind applicants to make inquiry as to their own liability under relevant laws.
As illustrated above, the standard by which security interests are balanced against privacy rights is subjective. With technology continuing to intrude upon personal matters, the ability to protect any remaining privacy (and the willingness to file suit to do so) takes greater precedence. Consistent with state law and the advice of association counsel (this article is not legal advice), it is recommended that clear written policies and procedures be adopted concerning association and unit owner installation of surveillance devices. Consideration should also be given to updating existing policies; after all – reasonable expectations of privacy will continue to evolve.
This article is not legal advice and is provided for informational purposes only. Actual legal advice can only be provided after consultation by an attorney licensed in your jurisdiction.