Legal issues with exterior cameras in Washington DC for HOA members and neighbors

Hi Bert

My townhouse HOA has been discussing the idea of video surveillance for a couple of years. Many of the issues in the articles that you attached wouldn't apply to us because none of the cameras would be put in interior spaces.

Our priority is for the system to be able to capture the license plate number on a moving vehicle in poor or night lighting. No one would monitor the system. We would set up a private LAN and use cloud storage. If a homeowner reports an incident, we would have an authorized person retrieve the appropriate data file.

By planning through the selection, installation, and monitoring phases first - we have narrowed our potential legal exposure in two ways. First, the equipment we choose and our placement choices will set limits on how far we might intrude into someone's space. Second, we aren't going to be looking unless an incident is brought to our attention.

We never thought about audio, which I think would be prohibitively expensive anyway on top of our night-visibility, all-weather equipment objectives.

We have not considered placing signs about saying that the area is under surveillance yet. That's an easy add-on if we want it.

My current board would not use the video surveillance for CC&R violations. We are more interested in being able to catch things done by outsiders which is the greater threat in my HOA community.

We would not ask our homeowners/residents to sign waivers. We don't think it's necessary and it could cause bad-will. We think that a meeting on the subject and publication of our plan will be sufficient. Our position might be different if we were a high-rise or condo where interior monitoring is more likely. Nor do we have any dark alleys surrounding our property where there is a history of attacks.

One of the case opinions in the legal journal attachment you provided stressed the reasonable judgment of the HOA board. IMO, that is always our best protection.

As far as our outside neighbors on perimeter grounds are concerned, if they get picked up by the camera they are outside where anyone can see them anyway. IMO, no intrusion into privacy. If it does pose a concern after equipment is installed, we can always adjust a camera angle of move its location.

Bert,

Generally, video recording is permissible in places where there is no expectation of privacy. No one has an expectation of privacy in parking lots, alleys, public streets, and sidewalks. Therefore, there should be no issue with recording what happens in the parking area and alley behind your building.

You are the first person I have encountered to claim that including audio with video is a violation of federal wiretapping laws. Can you provide a reference to the statute where making an audio recording of events in a public place violates federal law? My own state and a number of others authorize by statute recording audio and/or video of events such as HOA meetings, public meetings, and court proceedings. You seem to be suggesting that recording such events is a federal crime. I would strongly suggest that you consult with legal counsel before making a decision on this matter from a position of total ignorance.

The issue of a false sense of security is much more of a real problem. I worked in the self-storage industry for a few years and one of the issues was that many companies led their customers into believing that there was more active security than actually existed. In your case, you can avoid the issue by regularly informing your owners that while there are cameras recording they are not normally monitored; that they will do nothing to prevent a crime in progress. You do not want to give the impression that there is a room full of people watching these cameras 24/7 ready to summon police if they detect unusual activity.

States with HOA laws usually require the association to make all records available to members on request. Your recordings would fall under the heading of "records," so if a member wishes to view it there would be no reason to refuse him. The recordings would show events that occurred in places where there was no expectation of privacy so no one has a legal reason to object. Public policy also would require you to make the recordings available to law enforcement and you would be immune from suit for responding to subpoena.

At least "scrutiny" is close to security!

Bert,

The concern, as others have said, is that you are placing the cameras so they only look at public spaces. As far as wiretapping laws, I offer the following:

Reporters Recording Guide - DC from canwetape.com

Since DC is known to have some interesting laws, you may want to ask your Associations attorney for a legal opinion.

The federal statute covering the interception of wire, oral, or electronic communications is Title 18 of the United States Code Section 2511.

The statute does not prohibit the recording of video and audio if the individual making the recording is a party to the event ( such as recording meetings etc) or if the individuals being recorded are aware and consent. What the statute prohibits is the recording of audio without the knowledge or permission of the individuals being recorded. Such would be the case of the video monitoring of common areas including audio. Video without audio does not violate the statute as long as it does not violate the individuals right to privacy.

The individual states may have even more stringent laws regarding the unauthorized interception of oral communications.

p.s. I spent over 30 years in federal law enforcement

For the purpose of the statute - the term "intercept" means the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device it has no bearing on where the intercept takes place. It really has nothing to do with an expectation of privacy it just relates to the act of interception. Generally, there is no expectation of privacy in a public place. However there are limitations. The term "Right To Privacy" comes from a Supreme Court case Katz vs US. In which the FBI placed a microphone and transmitter inside a phone booth to monitor Katz as he made telephone calls.

If you are standing there operating the video camera in a public place then there is no expectation of privacy and you are also party to the event. If you record two individuals who are having a conversation with your camcorder, regardless of whether or not they are aware you are recording, the test is whether or not you could have "aurally" intercepted that conversation, in other words would you have been able to overhear the conversation unaided by any electronic means. In Katz - had an agent been standing in close proximity to the telephone booth and been able to overhear - then it would have been ok, but they used an electronic device to intercept the conversation.

The difference comes in when you have a security camera that is monitoring a public area. When you are operating the videocam, you are in a position where you could have heard the conversation. When the camera is being remotely operated as in a security camera situation then there is no-one present to overhear - hence there is a greater expectation of privacy. The courts have held that there is a greater expectation of privacy in oral communications, and the federal statute applies to such intercepts.

The individual States also may have legislation that prohibits or places limits on recording oral communications - for example the federal statute allows you to covertly record a conversation between yourself and another individual, but some States require that the individual be made aware of and consent to the recording.

The best policy regarding the use of a security cam that monitors public or common areas is to not record audio.

If you do decide to go with camera's don't waste you time with analog cams and a DVR. Go IP digital on the cams and go with an NVR - Network Video Recorder. Resolution is awesome.

Ever hear?:

"This call may be monitored for quality control purposes"

You've just been told that you are being recorded.