Privacy

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

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

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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.

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  1. I agree with the decision but hate this reasoning, “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.'”

    Just because it’s commonplace doesn’t mean it should be legal.

    1. Except that “commonplace” and “reasonable” are inextricably linked. Whether you call it “equilibrium adjustment” or not.

    2. “Just because it’s commonplace doesn’t mean it should be legal.”

      The law should not make good things illegal.

      Keeping children safe with the use of common and widespread technology should be encouraged.

      1. Exactly. There is no reason not to be able to record childcare workers. The safety of the kids is paramount over that.

    3. Well, the statute, rightly or wrongly, limits itself to recording of “[a]ny oral communication uttered by a person possessing an expectation that such communication is not subject to interception under circumstances justifying such expectation.” Might whether some recording is commonplace affect people’s justifiable expectations about whether the communication is recorded?

      1. I’d suggest that workers have no reasonable expectation of privacy using any resources of their employers. The monitoring of workplaces should be expected in all places except those where privacy is customarily assumed, such as in the toilet or bathroom.

    4. Is it called a “nanny cam” because it surveils the nanny or because it takes the place of the nanny?

      1. Best question posted here. And I think the latter is correct.

        1. It’s both.

        2. Wikipedia agrees with my understanding, that the former is correct.

    5. I also agree with the outcome but disagree with the decision. My disagreement is based in part on the court’s mis-interpretation of the term “nanny cam”. That term means, in my experience, a camera placed to monitor the child as a nanny would. While such a camera can also be used to monitor the nanny for potential abuse, the fact that it’s sold primarily to people who do not employee nannies tells me that the most common purpose of the camera is to be the nanny.

      Just like any other place of work, a nanny does not have a reasonable expectation of privacy while performing that work.

      1. Maybe regional? I would call what you describe a “baby monitor” and think of a “nanny cam” as what the court describes, though I wouldn’t use it myself.

        1. Realized I could just look it up and it turns out it’s used for cameras with either intent.

      2. the fact that it’s sold primarily to people who do not employee nannies tells me

        I am puzzled about the use of the phrase “the fact that” for something that is most certainly not an established fact.

    6. Um, THE CHILD YOU ARE SITTING sees and hears you. How the F can you possibly think you have an expectation of privacy in what you are doing? Good lord dissenters.

      1. This is the best rebuttal to the dissenters.

    7. Wait, you think it shouldn’t be legal to record in your own home what your employee does to your own child?

      1. In general, you are not allowed to record a conversation you are not a party to.
        I think the matter would be obvious if the target of the recording were in his own house; when he is in yours, it becomes somewhat vaguer what would constitute a “reasonable” expectation of privacy.

  2. “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.”

    Trust, but verify.

  3. “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”

    Treats the parent like a law enforcement officer instead of the parent and property owner. Elevates the nanny’s privacy over keeping the children safe.

  4. “most parents are reluctant to place their children (and homes) in the custody of people they do not trust….”

    Am I the only one who wonders why he kept that nanny after his legitimate concerns about her — a mandated reporter (i.e. teacher) would be required to file a report on what EV presented above regarding both (a) injuries and (b) fear behavior.

    That said, I don’t see how the nanny’s behavior was inherently criminal when the same behavior from a parent wouldn’t be. Remember that child protective is civil — and while the parent may have prohibited corporal punishment, the criminal law doesn’t.

    1. Not clear that a social worker bringing a complaint against a parent for just those actions would not be in a very strong position to claim that the child’s safety is endangered and it should be removed at least temporarily from the parent(s)

      1. Like I said, removing a child is a CIVIL case. Not criminal.

  5. In my opinion, it is reasonable to expect video recording but not audio recording given the laws against secret audio recording. Not that it matters where I live. Unlike some states, Massachusetts does not have a reasonable expectation of privacy standard for audio recording. A nanny cam would have to be plainly visible or only record video.

    1. “Massachusetts does not have a reasonable expectation of privacy standard for audio recording”

      MA is a 2 party state. Audio is more restricted than video.

  6. Point 3 would seem to be the determinative one. The sound of the nanny beating or slapping a child is not a “communication,” so the law as written does not prohibit interception of it.

    1. I have heard of complete suppression of audio as a remedy when the recording mixes protected and unprotected content, but I can’t say if that is a general rule. I don’t follow the subject closely. I want to know what I can do legally where I live, not what the remedy would be for a half criminal and half legal recording.

    2. I think the nanny is clearly communicating something to a child when hitting her. Non-verbal communication, but communication nonetheless.

      1. The Pennsylvania law prohibits recording an “oral communication”. Slaps are not protected.

  7. To me, there should be two separate questions. Do parents have the right to make the recording? Is the recording admissible as evidence of the nanny committing a crime?

    Apparently the PA law does not allow this distinction to be made. Dismissing the criminal case requires subjecting the parents to a felony prosecution.

  8. Chief Justice Max Baer! Didn’t he fight Joe Louis? And his kid was on The Beverly Hillbillies?

  9. “Commonplace” is either a natural occurrence or one driven by government. If any particular activity is regulated, licensed or standardized by government or quasi-governmental agencies, “commonplace” has no meaning. Where no government intervention appears, “commonplace” can either be due to free action or government failure to enforce policy. Is driving 10mph over the speed limit “commonplace” or just a failure to enforce the speed limit? Is a “trucker’s friend” a commonplace automotive tool or a burglary tool?

  10. I would think that you would be allowed to record whatever you want whenever you want in your own home. If having a nanny makes your home a workplace, then you should advise as a condition of employment, that the nanny will be recorded in video and audio. That said, I would have fired without delay any nanny who hit my kids and you don’t need recordings to prove it, observing the child’s behavior changes is enough.

    1. You can make recording a condition of employment. Absent notice or consent you do not have the right to secretly record audio even in your own home. There was a case (around the late 1990s in Georgia or one of the Carolinas) where a family used another extension of a landline to record a man seducing their underage daughter. The evidence was inadmissible because no party gave consent.

      1. In the case of crimes being committed, audio and video should always be admissible.

  11. It seems that this decision is effectively saying that despite 1-party or 2-party consent requirements, constant surveillance of a home – inside and out – by the home owner (at least if they have kids) should be assumed by all. In my own state we have a duty to notify employees if they are operating in an area subject to audio or video capture, and I agree that the nanny is probably deserving of notification if a similar requirement exists here. The dissenting assertion that the nanny needs to be told the location of the device seems a bit too far though.

    Now with this decision, does it effectively serve as notice to all nannies that they should assume surveillance in the home? Where is the expectation of privacy still preserved? In the bathroom surely, even though child care activities may be happening there.

    Agree with many comments here that the reasoning seems odd – something being commonplace serves as justification even if the law would otherwise prevent it. Does that mean the door is closed since the law wasn’t enforced earlier to modify this behavior before it became commonplace?

    A test of something being “commonplace” was used in Heller to protect its status from future regulation. Here, something being commonplace is used as an attribute to exempt it from law that existed before the activity itself.

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