When it comes to security for your home, your family and especially your children, you want the best. If you are considering a nanny cam for home security or child monitoring, one of the options available is to have an audio recording device or a video camera that also records audio. While the natural inclination is to certainly take the extra measure to help keep your family and home safe, the addition of sound-recording capabilities to a video camera changes the legality of using that camera, so make sure you are informed about the laws governing surveillance in your state before you buy.
When it comes to surreptitious audio recording of another person, both the U.S. federal government and state governments have consent laws. They are divided into two categories:
One Party Consent
The federal government has declared that any recorded audio transmission or conversation requires that one of the individuals being recorded must have consented to the recording. This person does not have to inform the other party of the recording. If neither individual has consented to being recorded, it falls under wiretapping or illicit monitoring laws and requires a search warrant to be accomplished legally. Failure to comply can result in the violation of privacy laws and severe consequences for doing so.
Two Party Consent
Two-party consent requires that both parties involved are aware that the recording is taking place. Several states have adopted this statute. Usually this requires that all parties either sign a legal document asserting that they were aware of the audio recording or to make a statement to that effect on the recording itself.
Applying Consent Laws to Using a Nanny Cam
Most states require only one-party consent, which means that if parents or guardians wish to record a nanny’s voice with a spy camera, they are permitted to do so. The reason they are allowed to do so is that as the legal parent or guardian, they can decide to record their child and consent to the recording on the child’s behalf. This decision came from the case State v. Diaz (706 A.2d 264 [1998]), in which the court upheld that parental consent for the recording of a minor under their legal care is sufficient cause to bypass one-party consent laws.
Therefore, for anyone who lives in the 37 states that allow one-party consent for covert audio recording, it is legal for any parent to record their child in the presence of a caretaker without the knowledge or consent of that caretaker.
States that Require Two Party Consent
While 37 U.S. states allow for one-party consent to covert audio recording, twelve states have laws to prevent audio recordings persons without their express knowledge and consent. These two-party-consent states are (in alphabetical order):
- California
- Connecticut
- Delaware
- Florida
- Hawaii
- Illinois
- Kansas
- Maryland
- Massachusetts
- Michigan
- Montana
- Nevada
- New Hampshire
- Pennsylvania
- Utah
- Washington
Anyone who resides in any one of these states who records other individuals voices without their knowledge or consent is in violation of the Electronic Surveillance Control Act.
Video vs. Audio
While the laws governing the recording of a person’s voice are very stringent, the laws surrounding video recording are often much more lax. As long as you don’t record video in areas where people have a reasonable expectation of privacy – such as locker rooms, bathrooms, dressing rooms or the personal bedrooms of live-in nannies, among others – soundless vidoe recording is usually totally acceptable, even without any express consent on the part of the individual being recorded.
Home cameras used to ensure the safety of a house usually do not come with a sound recorder. Some of the best cameras – such as one of the most outstanding DVR cameras, the DVRDMDC by Streetwise Security – do. To comply with the law, anyone in a two-party-consent state should simply turn off the audio recording option.
Legal notice: Prior to engaging in any recording without someone’s knowledge –either audio or video – you should consult a legal professional for advice regarding the specific laws that govern what is considered legal covert surveillance in your state, county and city.
