Inexpensive smart security cameras are found in millions of locations to remotely link you to your home or office. They can add another layer of security to enhance existing alarm systems or can provide basic monitoring service to notify of changes in the environment from movement or noise within a protected area.
Most of these devices offer high-definition video and integrated microphones. The old adage that “a picture is worth a thousand words” makes this technology invaluable for monitoring on a real-time basis what is happening at home with kids, pets, parents, and even the environment. They are equally popular for working parents who want to check on their kids in daycare centers and to watch babysitters.
And you can access this information from anywhere in the world via Internet-connected Android or IOS devices and apps. There is, however, a potentially darker side to this technology because not only can you watch, but listen to what is going on within proximity of one or more cameras. That means these devices can be used for an unintended purpose (and in violation of end-user license agreements) which can be illegal under federal and state criminal laws as well as subjecting abusers to civil liability.
Out of the many choices available, I installed Nest Cams; arguably the most popular and best known brand that is being sold by virtually all of the electronics and technology stores, on-line retailers such as Amazon, and surveillance security specialists such as Brickhouse Security.
Brickhouse sells a lot of surveillance hardware to government agencies, corporate enterprises, and consumers and was the subject of an article I wrote several years ago about their wide range of covert surveillance hardware. There are many hardware competitors in the market, including Nest, Arlo (Netgear), Belkin, and ADT.
They all have virtually the same hardware and software options: excellent video and audio capabilities, remote access and programming, motion and sound detection, and the ability to capture still or video images and audio and save the data to the Cloud. These cameras will notify you of pre-programmed events which the user can define as an alarm condition.
What consumers may not understand is that these smart cameras can also be very sophisticated bugs if programmed properly. They can allow the covert viewing, listening and recording of whatever is within their range. That means there is the potential for unlawful surreptitious non-consensual recording where there is a reasonable expectation of privacy or confidentiality.
I contacted Nest for information and had extensive discussions with their technical support team. Initially they had agreed to send me a test video/audio clip to demonstrate the capabilities of their system in cloud capture mode, but then they cited privacy concerns and denied my request. When I raised the issue of potential abuse of their systems for unauthorized surveillance, they cited their Privacy Statement and Terms of Use policy.
Neither of these documents in my view squarely addressed the issue of abuse of the technology and its capabilities.
I ran tests to determine how well the Nest Cam could capture video and audio without the knowledge of a person or persons near a camera. Here is what I found:
- The devices can be configured to watch and listen remotely with remarkably high-definition quality;
- All indications of monitoring (red light and chime) can be disabled so that the camera appears inactive;
- The audio pickup range is usable and intelligible to about fifteen feet;
- In audio monitor mode, the gain or sensitivity of the microphone can be increased from 0-100%;
- Sound within a room can trigger an alert within their application;
- The subscription recording application allows the review of video and audio that has been captured during the past ten or thirty-day period. It allows the targeting of a specific date and time, and compressed playback to create a time lapse sequence. The system works just like a DVR and allows rewind and fast forward functions for searching of content;
- Any video and audio that may be stored in the Cloud can be subject to a search warrant by law enforcement, or a National Security Letter that will prohibit the manufacturer from disclosing the demand for your audio and video;
- The video and audio can be downloaded in mp4 format;
- Nest offers 24/7 capture and recording options of audio and video for a monthly or yearly fee. The plans allow continuous recording of ten or thirty days and they will never time out. That means, for example, if a suspicious spouse placed cameras in the home and was traveling, he or she could remotely listen and watch to what was occurring without anyone knowing that recording had occurred;
- A form of Geo-fence can be established to detect movement within a specified area and trigger recording and send an alarm;
- The video resolution is excellent and can be zoomed;
- If you subscribe to the recording service, you can access clips remotely at any time, allowing viewing and listening or downloading for any recorded period;
- Unless you use the talk-back function with the chime enabled, there is no way for anyone to know they are being listened to, watched, or being recorded;
- A separate recording subscription is required for each camera, so multiple cameras can become quite expensive if you want to capture audio and video throughout a residence or business;
- The cameras are equipped with Infrared invisible illumination for recording in the dark.
While Nest provides their Terms of Service and Privacy Statement, neither of these directly addresses the legal issues involved in surreptitious recordings, other than in regard to their data protection policies. In a waiver of liability, the company states:
“(j) Data protection and privacy laws where you live may impose certain responsibilities on you and your use of the Products and Services. You agree that you (and not Nest) are responsible for ensuring that you comply with any applicable laws when you use the Products and Services, including but not limited to (i) any laws relating to the recording or sharing of video or audio content that includes third parties, or (ii) any laws requiring notice to or consent of third parties with respect to your use of Dropcam/Nest Cam.”
A senior representative of the company also asked that I examine their Security page to learn about some of their practices and to review their vulnerability reporting program, which in my view has nothing to do with the capability to improperly deploy these cameras.
The company provided the following statement to me:
“At Nest, we care deeply about security and are investing in it heavily. Our products have been invited in by our customers and we believe their homes and personal data deserve the same respect we give our own.”
Important legal issues
If you install smart security cameras in your home or office you need to be aware of certain legal issues so that you do not violate statutory restrictions or infringe on anyone’s privacy. The critical legal issue is the consent of all parties to be monitored or recorded, and whether there is a reasonable expectation of privacy; that is, whether it would be understood or logically inferred that one is being watched, listened to, or recorded. Complicating the legality of using these cameras is individual state laws.
Consent: In about forty states, and under the federal wiretap statute 18 U.S.C. 2511(2)(d), you must have the consent of at least one party (called one-party consent jurisdictions) to the conversation in order to lawfully monitor or record it. In about ten states (California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Montana, New Hampshire, Pennsylvania and Washington), you must have the consent of all parties (called two-party consent jurisdictions) to the conversation, or it is usually a felony to engage in such practice. Note that in Illinois their Supreme Court ruled the statute unconstitutional in 2014.
Private conversations: These laws provide that you may not secretly monitor or record what would reasonably be considered as a “private conversation” where there is no consent by at least one party to that conversation. That means you cannot listen or place a camera or bug in a place that is not public, or where it is anticipated that the conversation could not be overheard by others.
The distinction between video and audio recording
There is a clear legal distinction, at least in the criminal law, between monitoring or recording of video and aural communications. There is also potential civil invasion of privacy issues that could come into play by aggrieved parties.
Video
In the U.S. it is generally legal to secretly record video in your home. This is not the rule in business locations or other areas where there is a reasonable expectation of privacy. And it is generally illegal to make surreptitious video recordings for the purpose of extortion or malicious intent.
It is legal to record video in public places where there is no reasonable expectation of privacy. However, such areas as restrooms, changing rooms, locker rooms, bedrooms, and other private areas would generally be off limits. There may be different rules for hidden cameras in the workplace, and there are guidelines for larger corporations promulgated by the National Labor Relations Board.
Secret video recordings or still-image capture can also violate the privacy rights of others where monitoring is in an area with a heightened expectation of privacy. A school district near Philadelphia got into trouble for capturing still images of students through the webcams of their school-supplied laptops which were used in their homes. The Robbins v. Lower Merion School District case was settled for $610,000 after the district admitted taking thousands of photos of kids without their knowledge, even in their bedrooms.
The rule is not absolute, and Courts have allowed secret recordings without consent in certain areas such as elder care employees, daycare centers and babysitters.
Audio recording
Consent is the determining factor in audio recording. You cannot place a secret audio capture device in any area where there is a reasonable expectation of privacy, and you must have consent of at least one party to any conversation depending upon the legal jurisdiction. Placing a camera may be legal, but if the audio is turned on, then without consent it will be illegal. A more difficult scenario occurs when you are a party to a conversation with other individuals, then, for example, you leave the room and they continue to talk. At that point, capturing, monitoring, or recording their conversation is technically illegal because they may be unaware of the fact and did not consent.
Many years ago I was asked to set up a covert recording system in offices within a car dealership so that the salesman could meet with potential buyers to discuss pricing, then leave the room so he could monitor the conversation between the buyers, thus providing an advantage to the salesmen to know how far they would negotiate. I told the management that this would constitute a violation of the Wiretap Act, both state and federal because in such a case neither party would have given consent. The principals of the dealership ended up being convicted of federal crimes for bank fraud and were sued by the Iowa Attorney General in separate civil actions.
The applicable federal criminal statute is the Electronic Communications Privacy Act of 1986 18 USC 2510.
It prohibits the interception of aural communications without consent. It does not address video monitoring or recording.
If you receive one of these cameras as a gift, or they are placed in your office environment or residence, be certain who has access to the remote access application, and which parameters are set. They are simple to install and can easily be used to violate state and federal laws, to say nothing of invading your privacy if they are abused.
They are an incredible tool for monitoring your kids, elderly parents, workers, pets, or even burglars or vandals. When abused they can also be a sophisticated piece of surveillance hardware that blends into the environment and are quickly forgotten and ignored. In the hands of business owners, suspicious spouses or others who may want to monitor your actions or listen to your conversations, their capabilities must be understood. They can be a smart investment in terms of safety, security, and peace of mind but improperly used, they are clearly modern peeping-tom technology.
