January 15, 2019

Solicitors Corner

SCENARIO: After multiple showings and no offer, a homeowner decides that she wants to get more information on what potential buyers think of her home. As such, she installs multiple cameras throughout the home to watch and listen in on showings. Are there any issues with this homeowner’s actions?

ANALYSIS: There are certain factors that must be considered when determining if the homeowner violated the law when installing cameras into her home to conduct surveillance on a showing. The first consideration is: Where did the recording take place? Every state has different laws as it pertains to recording someone without his or her knowledge and each state’s law is different as to what is or is not permitted.  

What the homeowner is recording is also key. Does the camera in the home merely record video or is audio recorded by the camera or surveillance equipment as well? If the camera is merely recording video, the homeowner is subject to less stringent requirements. Video cameras should not be placed in any locations where an individual could be recorded fully or partially nude (i.e. a bathroom), but otherwise if a homeowner is solely recording video in their own home, they are generally permitted to engage in such an act.   

If, however, the camera or surveillance equipment also records audio, a homeowner is required to comply with the applicable law or face both criminal and civil penalties. In this regard, Pennsylvania is governed by the Wiretapping and Electronic Surveillance Control Act (the “Act”). Under the Act, both parties to a conversation must generally consent to being recorded (what is known as a “two-party consent” law). The Act makes it clear that it is a crime to intercept or record a telephone call or conversation unless all parties to the conversation consent. When a conversation occurs outside of a phone call, the law is a bit more unclear. 

With regard to oral communications outside of a phone call, the Act does not generally protect such oral communications when a speaker does not have an “expectation that such communication is not subject to interception under circumstances justifying such expectation.” In other words, an individual must have an expectation of privacy when making the oral communication in order for it to be protected by the Act. By way of example, if two people are having a conversation in a public place with others around, such a conversation may not be protected by the Act. Communications which occur in the privacy of a home, however, regardless of whether the home is owned by the people involved in the conversation, will likely be afforded protections under the Act.  

The foregoing is due to the nature and location of the conversation. Individuals going through a showing and commenting on a home do not expect to have such communications recorded. Accordingly, it is generally not recommended that homeowners record the audio of those going through showings of a home. Notwithstanding the foregoing, if a homeowner wants to audio record a showing, the homeowner should inform the potential buyers, in multiple locations and forms, that audio recordings are being conducted in the home. By way of example, such notifications should be included in postings around the home and in writing to the Realtors® prior to a showing. Even if a homeowner is only recording video, it is still recommended that notification is provided to those entering the home.

While Realtors® should be mindful to inform their clients of the potential issues of illegally recording an individual, they should also be weary of the law as well. The law does not merely subject the individual who made the recording to potential liability but “any person who intercepts, discloses or uses or procures any other person to intercept, disclose or use, such communication.” As such, if a Realtor® encourages such recordings or views and “uses” such recordings after the fact (for example, listening to the recordings to see how the home could be improved), the Realtor® may be subject to liability under the Act even if they were not the one who actually engaged in the recording activity.  

With regard to the Act, it is better to be safe now than sorry later, as a violation could constitute a felony and expose an individual to monetary damages from those they illegally recorded.