You may have noticed that wireless video cameras designed for home security use do not come equipped with audio recording capabilities. There is a very good reason for this. In the U.S., it is generally legal to surreptitiously record video. However, it is not legal to record audio.
There are two things in play here. First is federal law that generally requires consent before audio involving third parties can be recorded. Second, and more importantly, is federal law that bars video surveillance devices with the ability to surreptitiously record audio.
Legality of Recording Video
U.S. law is built on the principles of English common law. One of its foundational principles states that any activity not expressly illegal under the law is, by default, legal. At the current time, there are no federal laws barring video recording except under certain conditions in which there is an expectation of privacy. For example, you cannot surreptitiously record video of people in restrooms, dressing rooms, etc.
Other than that, things are pretty wide open for video surveillance. According to Vivint Smart Home, homeowners can legally place video surveillance cameras around their homes and record as much footage as they see fit. Business owners can do the same.
It is also legal for homeowners to share a video camera footage with law enforcement, the press, etc. As the thinking goes, there is no expectation of privacy when you are a guest in someone’s home – with the exception of using the bathroom. As a guest, you can be seen wherever you go on the property. And if human eyes can see you, so can video cameras.
Legality of Recording Audio
Recording audio is different. Why? Because there is an expectation of privacy when it comes to conversations. You could be a guest in someone’s home and be having a private conversation with one of the residents. Maybe you are speaking with the mother about interactions between your children. You are in the kitchen and you intend your conversation to be private. It is not for other guests to hear.
Because conversations can be kept private even in the midst of other people, both the federal government and most states regulate how audio can be recorded. For the most part, legally recording audio falls under one of two categories:
- One Party Consent – In the U.S., one party consent is the bare minimum. It dictates that one party to the conversation must consent. While this sounds obvious, it is not. Imagine having a home security system with cameras capable of recording audio. It is your system. You would have to consent to any audio recording. Your home security company couldn’t simply record of its own volition.
- Two-Party Consent – Two-party consent requires that both the person doing the recording and the person or persons being recorded give their consent. Many U.S. states require two-party consent. Because it is impossible to record surreptitiously and still get consent from other parties, surreptitious recordings are not allowed under this model.
Finally, there is a federal law that bans the use of audio recording devices on hidden cameras. If you wanted to record audio and video of your nanny or babysitter, for example, you wouldn’t be able do so using a single device. If your state allows one party consent, you could set up a separate audio recorder. You still could not have audio recording embedded in a hidden camera.
Yes, it is completely legal to surreptitiously record video in your home or small business. In most cases, it is not legal to record audio. And now you know why.