Smile, You’re on Camera: Legal Implications of the Capture and Use of Home Security Camera Footage

By: Treja Jones

With technology on the rise, it’s become easier to monitor the security of one’s property. Accordingly, more and more homeowners are installing security devices and equipment outside their homes to capture suspicious activity and prevent theft or trespass. As the use of social media outlets continues to grow, allowing people across the world to share images, videos and announcements with one another, security companies are beginning to create features that allow product-users to share recorded security footage on the internet in order to alert neighbors of potential crime. Such neighborhood watch features work to make communities safer by keeping residents in the know about potential criminals lurking around the neighborhood. But does the use of security camera technology with the ability to publicly post captured footage violate Washington privacy laws?

In a two-party consent state, security cameras that record audio may pose issues of wiretapping

Washington state law requires that all parties to a conversation or electronic communication consent before a recording occurs. Wash. Rev. Code Ann. § 9.73.030 (West 2012). Despite the fact that security video surveillance may not record a literal conversation, “Most newer Wi-Fi security cameras… record both audio and video, which puts those devices under the governance of wiretapping laws.” This could mean that consent is required before a home owner is allowed to record someone through the use of a security camera if that recording device contains an audio component.

However, “In general, it is legal to film areas that are viewable to the public.” The reason being, in public spaces, people generally do not have a reasonable expectation of privacy. While the inside of a home is considered a space where a reasonable expectation of privacy would exist, the outside of the home is not. This blurs the line between legal and technically illegal recordings when it comes to security surveillance right outside the home, like recordings by cameras positioned on a front porch or over a garage. To be safe, there are precautionary measures homeowners can take to avoid potential legal trouble surrounding the use of a security camera.

Because Washington law only requires consent before the recording of a communication or conversation, cameras that do not have an audio component are most likely within the bounds of privacy law.  As such, “A few cameras allow you to solve the wiretapping conundrum by simply turning off audio recording.” But for those cameras where the audio component cannot be switched off, “The way around the illegality of general audio recording rules is to make the parties aware that they are being recorded.” This might be accomplished by the use of a sign clearly warning people on the property that a camera is in use. If a sign warning all parties about the use of a camera is posted, and a person still decides to proceed onto the property, it is assumed the party has consented to be filmed. Though these solutions take care of the recording itself, the use of such a recording could still be susceptible to violations. “‘If you don’t do anything with the recording, then the question [of legality] is entirely academic. . . But if you do something with the recording, the situation changes.’”

Use of recorded footage without the permission of the surveilled subject, for a purpose other than proving the act of crime or preventing future crime, may pose issues of misappropriation

             Even if it is legal to record a video, “adding the recorded video to YouTube or other Internet outlets for others to see without all the parties involved consenting is a federal offense.”  So what does that mean for security technologies such as RING, Vizenity, and Streety, all security apps that allow members of a community to post and view real-time footage recorded by cameras in the neighborhood to promote neighborhood safety? Could posting security footage to these apps cross legal privacy lines? Dependent upon the content of the video, this could certainly be a possibility.

According to guidelines offered by New Media Rights, “most states allow you to record and then use that recording to prevent a crime or to prove one was committed.” While this fits the very purpose of digital neighborhood watch technologies, this doesn’t quite mean such technologies are in the clear; privacy laws are very particular about the criteria of footage posted to prevent a crime or prove one was committed. “If the recording isn’t of a crime, and you still try to use it in some way . . . you’re crossing other legal lines.” Essentially, the law requires that to avoid the posting of defaming videos that imply criminal activity when a person might not truly be committing a criminal act, to clear the “crime prevention” hurdle, the video footage should clearly and actually depict the captured party in the act of committing a crime or attempting to do so.

This might mean that, for example, footage of a strange man looking into the window of a residence might not be enough to be considered a posting to “prevent a crime or to prove one was committed.” Even if the owner of the footage holds a genuine belief that the person recorded was up to no good, “Publishing real footage that paints a person in a misleading or false light can be grounds for a lawsuit,” so it’s best to be cautious before uploading captured surveillance footage to an online public platform.

Security cameras can contribute to the safety of a neighborhood or home if they are used appropriately. But if a homeowner isn’t careful, the use of a security camera and its footage might elicit a run in with the law.

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