Security Cameras, Ethics, and the Law

If you don’t tell your houseguests that a Wi-Fi security camera is recording everything they do and say, you may be breaking the law. Or you’re just plain rude. It all depends.

Home Wi-Fi security cameras such as our top pick, the Logitech Circle 2, and the popular Google/Alphabet Nest Cam can let you check on pets and family when you’re away, and they may even help you catch a thief red-handed—but if you’re not careful, they can also turn you into a world-class snoop or even a cybercriminal.

What are the concerns?

Wi-Fi video camera recording—including the capture of still photos, which most Wi-Fi cameras are capable of—is subject to "reasonable expectation of privacy" guidelines under privacy law, and that can make using these devices a little tricky.

If you’re on the street, in a bar, or even in your front yard, you have very different—and much looser—reasonable expectations of privacy (for example, everyone knows that, even in their own backyard, they might be picked up in a Google satellite image). But once you—or your guests—step into your home, there’s a heightened expectation of what amount of privacy is “reasonable,” though that expectation may vary from room to room. For instance, you expect more privacy in a bathroom or bedroom than you do in a kitchen.

You do have the right to record video inside your home without telling anyone, but—well, there are two big buts. The first: You can’t record video in any location where a person would expect to have a high degree of privacy. Those places should be pretty obvious, as noted earlier—bedrooms and bathrooms are clear examples, as is a changing room if you have a pool. But what if a guest is sleeping on your sofa, and likely using that room to dress? The author of this Fusion article describes that very situation: A person sleeping on a friend’s sofa for a few weeks discovered that she was being recorded by a Dropcam (the precursor to the Nest Cam). The situation is murky, because although it was a living room—the most public room in a home—it served as a de facto bedroom for the time the guest was using it. What makes this case even murkier is the technology involved.

The use of security cameras, including nanny cams and Wi-Fi cameras, may also fall under federal and state wiretapping laws. But wait—wiretapping is audio, so why is that important for security cameras? Most newer Wi-Fi security cameras, including all three of our top picks, record both audio and video, which puts those devices under the governance of wiretapping laws.

Wiretapping laws vary somewhat from state to state. Federal wiretapping statutes allow audio recording if one of the two parties consents to the recording. This means that you, the recorder, may know, but the other party doesn’t need to. Some states, including California (where the above-described scenario occurred), require dual consent, which means everybody involved needs to be in the loop.

So does this mean you have to tell burglars that they may be recorded if they break into your house? Definitely not. A trespasser waives any expectation of privacy in your home. You can record that person, hand the recording over to the police, and use the recording in court.

Although you have the right to surveil intruders in your own home without their consent, today’s cameras introduce a new bugaboo: Many models, including the ones Wirecutter recommends, stay on and record 24 hours a day, not only when you’re away. This means that everyone in the house—your family, guests, employees, cable installers and furniture deliverers, any people who have permission to be in your house—will be recorded, and if that recording includes audio, and if you’re in a state that requires dual consent, you may want to warn them, or you could run afoul of wiretapping laws.

What constitutes consent when recording video and audio?

You might be wondering what constitutes dual consent. Do you need to have a stack of consent forms next to your front door? Does a verbal acknowledgement (especially if the camera catches it) suffice, or can you just put a “premises under surveillance” sticker on the front door window and assume everyone has seen it before they come in? “Consent for audio has to be given in writing,” said Ken Kirschenbaum, a counsel for the alarm industry and consultant to the publication Security Sales & Integration. He told us it’s a common misconception that window decals or yard signs (and the expectation that visitors see and recognize them) qualify as consent.

Yet Kirschenbaum is not all that concerned about consent for home cameras, because a lot of the matter comes down to what you’re doing with the recording, or what you intend to do. Essentially, if you don’t do anything wrong with the recording, who will know or care? In fact, Kirschenbaum said that courts have even carved out case-by-case exceptions to wiretapping laws without making any change to statute. “If you don’t do anything with the recording, then the question [of legality] is entirely academic,” he said.

But if you do something with the recording, the situation changes.

Let’s say you invite some friends over, and one of those friends is Lady Gaga. Now you have video of Lady Gaga sitting in your kitchen, playing with your cat, swimming in your pool. That video is worth something, right? You could sell it to a gossip magazine. Well, no, you can’t. In this case, what you do with the footage matters. First, you never received consent for the recording (hello, wiretapping law), and second, you can’t use a recording for commercial gain without the subject’s consent.

A few cameras allow you to solve the wiretapping conundrum by simply turning off audio recording, but even if you can do so, would you really want to turn off a feature you paid for? Audio recording may not be all that helpful in catching a thief (they’re usually pretty quiet), but it can be useful for eavesdropping, which brings us to the next surveillance ethics dilemma.

What can you do with recordings?

Let’s say you record someone in your home, and you want to use that recording—maybe it was someone plotting a crime. 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.

If the recording isn’t of a crime, and you still try to use it in some way, such as posting it on YouTube or social media, you’re crossing other legal lines. New Media Rights warns that using a recording for exploitive or commercial purposes (think of the Lady Gaga example above) may be misappropriation if not all parties consent—again, these rules vary from state to state, so you should make sure.

Brickhouse Security further cautions that it is illegal to record audio or video with the intention of blackmailing that person, even in your own home.

Another tricky situation that may arise is a request from government or law enforcement agencies to access your recording. Let’s say law enforcement suspects that something nefarious is going on in your home. Are you obligated to hand over the content? “Law enforcement has the right to ask for it, and get it,” said Kirschenbaum, though he added that they would likely need a warrant. Further, because Wi-Fi camera recordings are usually stored on cloud servers rather than in the user’s home, law enforcement may bypass the customer and go straight to the company that owns and operates the cloud service.

What should you do?

The safest bet is to make sure everyone entering your home knows the camera is there, and to avoid placing cameras anywhere a person would reasonably expect privacy. But if you’re not inclined to tell guests or visitors, that’s probably okay so long as you don’t do anything with the footage other than keep it for your records.

Of course, you have other good reasons to be careful about privacy with your security camera. Even if you have no intention to do bad things, if you’re not careful you could open your home to people who may very well mean to do such things, like hacking cameras and capturing or broadcasting the feed. Think of this case in Houston, where hackers publicly exposed an 8-year-old child’s bedroom.

So to protect yourself and your guests legally (and to guard against anyone who may want access to your cameras for questionable reasons), we suggest you take reasonable security precautions, including putting strong passwords on your devices and maintaining a secure Wi-Fi network. And take the ethical high road whenever you use new technology.