The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent


Do Nannies Have "Justifiable Expectation" That They Won't Be Audiorecorded at Work?

No, says the Pennsylvania Supreme Court, though over a dissent.


The facts, from Commonwealth v. Mason, decided last week by the Pennsylvania Supreme Court:

Eric Valle … hired Appellee to act as a nanny for his children and, in doing so, prohibited her from using corporal punishment on the children. Approximately one month after Appellee commenced working for Valle, Valle's three-year-old son reported that Appellee was "thumbing" him in the face and hitting his twin two-year-old sisters. Around that same time, Valle observed that one of the twins had a "busted lip" and that his son occasionally had marks on his face.

Valle asked Appellee about his daughter's injured lip, and Appellee initially could not offer an explanation. The following day, however, she suggested that the child may have injured herself while attempting to climb out of her playpen. Valle was skeptical of this possibility given that his daughter suffered no other injuries that would indicate that she fell from her playpen. Of further note, Appellee told Valle that she did not know why his son would claim that she was "thumbing" his face or that she was striking the twins.

Additionally, after Appellee began to care for the children, Valle noticed a shift in their behavior. For example, if Valle raised his voice, his daughter would cover her face, a behavior that she did not exhibit prior to Appellee's employment with the family. Indeed, it appeared to Valle that his children were afraid of Appellee.

Approximately two months after Valle's son reported these incidents to him and Valle confronted Appellee, Valle placed a camera in his children's bedroom. The camera captured sound and video of its surroundings. Valle purposely did not inform Appellee of the presence of the camera. At some point, the camera recorded Appellee yelling at one child before forcefully placing her into a crib located inside of the bedroom where the camera was recording. Audio portions of the recording also suggest that Appellee may have struck the child several times. Valle gave the recording to the police.

The Commonwealth subsequently charged Appellee with aggravated assault, simple assault, and endangering the welfare of children. In response to Appellee's habeas corpus motion, the trial court dismissed the aggravated assault charge due to a lack of sufficient evidence to support it. Appellee then filed an omnibus pretrial motion, which included a motion to suppress the audio and video recordings captured by the previously mentioned camera….

The trial court granted the suppression motion, and the appellate court agreed as to the audio portion, but the Pennsylvania Supreme Court reversed. The Pennsylvania Wiretap Act, which is at the heart of the case,

  1. makes it a felony to "intercept … any wire, electronic or oral communication," and makes such illegally intercepted communications generally inadmissible.
  2. "Oral communication" is in turn limited to "[a]ny oral communication uttered by a person possessing an expectation that such communication is not subject to interception under circumstances justifying such expectation."
  3. "Intercept" is defined to cover any "acquisition of the contents of any wire, electronic or oral communication through the use of any electronic, mechanical or other device."
  4. And the Act has an exception (which the court didn't interpret here) for "[a]ny victim, witness or [licensed] private detective … to intercept the contents of any wire, electronic or oral communication, if that person is under a reasonable suspicion that the intercepted party is committing, about to commit or has committed a crime of violence and there is reason to believe that evidence of the crime of violence may be obtained from the interception."

Chief Justice Max Baer's majority (joined by Justices Thomas Saylor, Debra Todd, Kevin Dougherty, and Sallie Updyke Mundy) concluded that the interception prohibition didn't apply:

[A]bsent demonstrable circumstances to the contrary, we believe it is objectively reasonable to conclude that persons in Appellee's position do not have a justifiable expectation that their oral communications will not be subject to interception while they are in a child's bedroom. Notably, the use of recording devices in homes as a means for parents to monitor people hired to care for their children have become so commonplace that these devices are often referred to as "nanny cams." That is to say that the expectation that a childcare worker is going to be recorded in their employer's home is so ubiquitous in our society that we have a name for it.

Justice David Wecht dissented; his dissent largely focused on statutory construction and on whether an earlier precedent should be overturned, but it also disagreed with the majority's application of the "justifiable expectation" test:

The Majority's entire analysis hinges on the correctness of a single proposition: that the use of recording devices to monitor child care workers is "ubiquitous." The implication, of course, is that nannying is an occupation in which constant surveillance is the norm, to be expected by any reasonable caregiver. The Majority offers no support for this assertion, which strikes me as quite dubious. My own instinct—admittedly no more scientific than the Majority's—is that most parents are reluctant to place their children (and homes) in the custody of people they do not trust….

Most people in most situations generally assume (correctly) that they are not being recorded. Thus, as before, "I have no trouble concluding that this expectation [of non-interception] is justifiable in the vast majority of instances in which people speak, and becomes unjustifiable only in the presence of some indicia that one's utterances are being intercepted."

Justice Christine Donohue dissented as well:

I strongly disagree that, as a matter of law, anyone accepting employment as a nanny forfeits his or her right of privacy in the child's bedroom. The Majority does not explain why a nanny must assume that she will be surreptitiously spied upon by her employer after being entrusted with the care of that employer's children, or why the nanny should not assume instead that a parent who placed him or her in this position of responsibility also trusted that appropriate care would be given to the children. There is nothing in the record to support the notion that an expectation of distrust by parents is "ubiquitous" in our society, that all parents surveil their child's caregiver, or even that most babysitters (of varying ages) are aware of the general utilization of such surveillance devices. But even if one assumes broad awareness of the existence of nanny cams, knowledge of the device's capabilities (e.g., whether they are activated by motion detectors, whether they capture both video and audio, etc.) is certainly not universal….

In my view, privacy principles require that to validate evidence from the use of surveillance devices in criminal proceedings, a parent utilizing such a device to monitor a nanny must advise the nanny that it has been installed, where it is located, and that it is recording his or her words and actions. Given appropriate notice, issues relating to the nanny's privacy rights and the admissibility of evidence under the Wiretap Act would be avoided. Candor about the surveillance may serve to prevent unwanted behavior if a parent believes that trust may have been misplaced when employing the nanny. It also allows the nanny to decide whether he or she is willing to give up privacy expectations because of his or her occupation in the home of another.