Overview of Lewton
Parents who are concerned about their child’s well being might use hidden electronic monitoring devices such as hidden audio recording devices and nanny cams. Unfortunately, parents who use these devices may unwittingly violate federal and state law. In Lewton v. Divingnzzo (PDF), a mother was convicted of violating the Wiretap Act of The Electronic Communications Privacy Act (ECPA) 18 U.S.C. §§ 2510-2522 after she concealed an audio recording device in her daughter’s teddy bear (“Little Bear”) for the purpose of gathering evidence to sabotage the child custody rights of her ex-husband. Over five months she downloaded the recorded conversations from the audio recording device to her computer, burned CDs of the conversations, and ultimately had transcripts made of the conversations.
Application of the Wiretap Act in Lewton
The Lewton Court held that the mother violated the Wiretap Act of ECPA, §§ 2511(1)(a) and (b) by “intercepting the oral communications of all plaintiffs using the device planted in Little Bear”; and §§ 2511(c) and (d) by “intentionally using and disclosing the plaintiffs’ oral communications in conjunction with the state court Custody Case.” An “oral communication” under the Wiretap Act is “any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectations…” § 2510(2). The Court found that the Plaintiffs had a justified expectation that their conversations were not being intercepted.
The Wiretap Act and Nebraska law have exclusionary rules for unlawfully recorded oral communications. § 2515. Therefore, the mother’s recordings were not admissible in the child custody suit. The Court noted that the general position of federal appellate courts is that any exceptions to the Wiretap Act must be specified within the Wiretap Act itself. The Court considered a number of these exceptions and found that they were not applicable to the mother’s actions. Interestingly, the District Court declined to apply a Nebraska law that is strikingly similar the Wiretap Act. Neb. Rev. Sta. § 86-297. Although the Court stated that it lacked the competence to apply the Nebraska Statute, it is possible that the Court, in effect, declined to double the current $60,000 of statutory damages on the mother.
The Wiretap Act has a one-party consent provision: “where one of the parties to the communication has given prior consent to such interception,” the interception is lawful. § 2511(2)(c). Minors, such as the 4 year old daughter in Lewton, cannot legally consent. The mother claimed “vicarious consent” to the interceptions on her daughter’s behalf. The Court was able to sidestep this novel defense because the recording device in Little Bear captured numerous conversations of the plaintiffs in the absence of the young daughter.
Application of Privacy Laws to Hidden Monitoring Devices
Parents should not use hidden audio recording devices. In accord, the majority of nanny cams do not record audio in order to avoid Wiretap Act violations. ECPA does not cover video surveillance and hidden video images may be unlawful in the event that they capture lewd images (Video Voyeurism Act of 2004) or capture images in another’s home (Dietemann v. Time, Inc.). In contrast to hidden video surveillance, hidden audio recordings violate the strict provisions of both the Federal Wiretap Act and state statutes modeled on the Wiretap Act. Any individual can bring a claim under the Wiretap Act, the unlawfully obtained evidence is excluded from trial, and violators must pay a minimum $10,000 fine per injured plaintiff. §§ 2515, 2520(a)-(c).
Courts will probably encounter the “vicarious consent” defense with minors again, but this extrapolation of a parent’s ability to consent for a minor is conceptually troubling under circumstances such as in Lewton, where the minor is unaware of the hidden surveillance. Of note, many states, such as California, are all-party consent states. In these states, all of the parties must consent to the electronic surveillance for it to be lawful. The most tenable solution to hidden electronic monitoring may be to get nannies, babysitters and housekeepers to sign consent forms up front for hidden electronic surveillance. Under those circumstances the parents would not be liable and the employee would be deterred from improper behavior in the first place.