Why Can’t I Record the Nanny’s Conversation?

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Why Can’t I Record the Nanny’s Conversation? Covert Audio Laws Explained
Published on 30 April 2010 by Devin McDonald in Safety & Security Tips

Like any parent, you’re probably concerned about your child while he or she is in the care of a nanny. Many parents with similar concerns turn to nanny cameras in order to put their minds at ease. But as audio and video recorders such as nanny cameras become more advanced, less expensive, and more prevalent, people are starting to question what is and what isn’t legal when it comes to recording. Even though it may seem perfectly legal to use a surveillance camera with audio to record your nanny within your own home, there are some issues that may get you in trouble with the law.

Generally speaking, using a nanny camera to record covert video is fine, as long as you get the people entering your home’s consent. You may be thinking, well doesn’t that defeat the purpose of recording covert video if the person that I’m recording knows about it? Not exactly. When you hire a nanny, if you both agree that the home owner may be video recording them, you don’t need to tell the nanny exactly what is recording them or when it is recording. Instead, alerting the nanny that you are recording covert video may deter the nanny from any wrongdoing in the first place.

When you’re using a camera that records both video and audio, this is where the laws become more tricky. Although the laws surrounding audio recording vary by state, below are some guidelines to consider before using covert audio and video equipment. Please take into consideration that the laws are constantly changing and are different from state to state, so you really must contact a trusted lawyer for your particular situation.

Is covertly recording what your nanny is saying illegal?
Yes. If you want to find out what your nanny is saying and you decide to use a product with covert audio or a covert audio recording device without telling the nanny that you’re recording, it is illegal. It is illegal to record what someone else is saying without their consent because it falls under Federal Law 18.2-2512, which means that all parties must consent to being recorded. Title 47, Chapter I, Part 15, Section 15.9 iterates that parties other than law enforcement officials must have consent from all parties involved in order for audio recording to be legal.

You can’t record audio within a home because there is a reasonable expectation of privacy when a nanny is in a home, speaking at a normal volume. The nanny does not expect that a person standing on the street will be able to hear her conversation, therefore it’s considered private. That being said, the very same person on the street might be able to catch a glimpse of the nanny standing in the living room. That means that there is no reasonable expectation of privacy within the living room and that’s the rational behind being able to covertly record video but not audio.

Simply stated, if you do not obtain consent from the caregiver to record audio, you are not allowed to record. If you choose to record the audio anyway, you could face up to five years in a federal prison for breaking the law.

How do I record the nanny legally?
If you still want to record the audio of your nanny, you must follow a few steps to be in accordance with the law. First, you must obtain consent from the person being recorded. Next, you must make the camera and/or the microphone obvious to the person being recorded. That means if you buy a covert camera that has no indication that it’s recording audio, it is illegal. Lastly, you must state in writing and visibly on the camera that audio and video are being recorded, and again make this posting obvious.

If you only want to record the video of the nanny talking on the phone from a camera, you may position the camera (either hidden or in an obvious manner) to catch her talking on the phone. In other words, you may record video her talking on the phone but you cannot covertly record the audio under any circumstances because of the expectation of privacy. Again, wiretapping is illegal – so don’t do it.

Final Words
In general, video recording is legal when it occurs in a place where there is no reasonable expectation of privacy. Audio recording is illegal, unless consent is obtained from all parties. When in doubt about recording, you must contact a trusted lawyer in your state to help guide you through the laws.

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