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What’s An Invasion of Privacy? It’s Complicated

| Aug 18, 2020 | Uncategorized

Last week, my family was notified by neighbors that a bear cub was sitting at their doorstep. After the cub left, my family was understandably nervous. The cub’s unwelcome visit led to a talk about buying an outdoor surveillance camera. We learned that the camera we were considering, directed to capture activity at the entry doors, would likely also provided a view of a neighbor’s side-door. Should this stop my family from installing an outdoor surveillance camera?

Outdoor surveillance cameras are generally legal, so long as they provide only video surveillance. Any listening, monitoring, or audio functions must be disabled. Audio surveillance is governed by the Federal Wiretap Act. See 18 U.S.C. 2511.

In considering outdoor surveillance cameras that may affect neighbors, the main question  is whether the camera invades the neighbor’s reasonable expectations of privacy. “Intrusion upon seclusion” is a claim that allows someone whose privacy has been invaded to seek recovery for their injuries. Under a recent case called Friedman v. Martinez, there is a claim for the intentional intrusion, “physical or otherwise, upon the solitude or seclusion of another . . . if the intrusion would be highly offensive to a reasonable person.’”

People cannot claim a reasonable expectation of privacy when they are in public places, driving on public streets or walking in the common areas of a building. Whether a place is “private” for an intrusion upon seclusion claim to exist does not depend upon whether or not the place at issue is privately or publicly owned. A place is “private” when someone has a reasonable expectation of privacy in a particular place.

It is settled law that a homeowner (or renter) has a reasonable expectation of privacy in their home. An overnight or weekend guest may also have a legitimate expectation of privacy in someone else’s home.

A homeowner’s or renter’s privacy can be invaded with a neighbor’s surveillance camera, specifically when the camera is directed toward the inside of the person’s house. In multi-family housing, the range of the surveillance must be limited to the area inside the owner’s entry door and may not provide a view of a neighbor’s entry door or the rest of the common area. In a New York case, a condominium board allowed a unit owner to maintain “door viewer” surveillance cameras that showed activity only in the common hallway in front of the unit owner’s three entrance doors.

In spite of the fact that people have a reasonable expectation of privacy in their homes, the “open field” doctrine says that there is no expectation of privacy if an area on a person’s property is easily visible to the public without the need to be physically on the property (from the street or the air).  In order to have a claim, it must be true that someone on the street or a roofer or a tree trimmer cannot see what the camera saw, only from a different angle.

So what should my family do? The answer depends on the neighbor’s reasonable expectation of privacy – focused on the location of the side-door. The key question is whether someone on the street, or a roofer or a tree trimmer, is or is not able to see the side-door, only from a different angle. In purchasing an outdoor surveillance camera, Professor Elizabeth Joh of University of California- Davis reminds consumers that “[y]ou never just ‘buy’ a new surveillance device. You’ve adopted a worldview about privacy, anonymity and autonomy — whether by conscious choice or accident.”

Is one of us going to climb up on a roof to make sure? I don’t think so. Do we want to invest in a drone to fly around the neighborhood? Probably not. What about privacy from the bear? It needs some more research.

Elissa Frank, who wrote this blog, is in her 3rd and final year at Rutgers Law School, where she is Editor-in-Chief of the Rutgers Law Record.

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