March 29, 2021 In Criminal Defense, Litigation

Pennsylvania Supreme Court Holds that the Use of “Nanny Cams” Generally Do Not Violate the Wiretap Act

On March 25, 2021, the Pennsylvania Supreme Court issued its decision in Commonwealth v. Mason, No. 69 MAP 2019 (2021).  The Court, in a 5-2 decision, held that the use of “nanny cams” in one’s home generally will not violate Pennsylvania’s Wiretapping and Electronic Surveillance Act (the “Wiretap Act”).  I previously wrote about the Wiretap Act here. In Mason, Eric Valle hired Ms. Mason as a nanny and prohibited her from using corporal punishment on his children.  When Mr. Valle’s son reported that Ms. Mason was being physical with him and his sisters, and after Ms. Mason provided an explanation that made him skeptical, Mr. Valle set up a surreptitious “nanny cam” in his children’s bedroom, which captured both sound and video.

The camera captured video and audio that led to Ms. Mason being charged with aggravated assault, simple assault, and endangering the welfare of children. After the aggravated assault charge was dismissed, Ms. Mason moved to suppress the recording, arguing that it violated the Wiretap Act.  In response, the Commonwealth argued that the recording was permissible because it fell within an exception to the Wiretap Act that allows such private recordings when the person recording “is under a reasonable suspicious that the intercepted party is committing, about to commit or has committed a crime of violates and there is reason to believe that evidence of the crime of violence may be obtained from the interception.”  Moreover, the Commonwealth argued that, in any event, Ms. Mason had no reasonable expectation of privacy in the children’s bedroom and, therefore, the recording was not subject to the Wiretap Act.

The trial court suppressed the recording in its entirety. Thereafter, the Commonwealth appealed, and the Pennsylvania Superior Court largely upheld that trial court’s decision, except for determining that the video portion of the recording was admissible while the audio portion was not. With regard to the audio portion, the Superior Court held that Ms. Mason had a reasonable expectation that she would not be recorded in the home because she was an employee and regular overnight guest in the home.  The Superior Court also determined that the Commonwealth failed to meet its burden of proving that Mr. Valle had a reasonable basis to believe that the recording would produce evidence of a crime of violence, namely aggravated assault.

The case was then appealed to the Pennsylvania Supreme Court.  The high court first determined that because it was Ms. Mason who was seeking to suppress the recording, it was she and not the Commonwealth who had the burden of proving that the recording was illegal. Next, the Court held that Ms. Mason should have expected to be recorded in the home because “the use of recording devices in homes as a means for parents to monitor people hired to care for their children have become so commonplace that these devices are often referred to as ‘nanny cams.’”  The Court went on to explain, “That is to say that the expectation that a childcare worker is going to be recorded in their employer’s home is so ubiquitous in our society that we have a name for it.”  In other words, “a nanny does not have a justifiable expectation that her oral communications will not be intercepted in the bedroom of a child in her care simply because the nanny is an employee and guest of the homeowner.”  Because there was no reasonable expectation of privacy, the Supreme Court saw no reason to address the second argument that the recording was admissible under the “crime of violence” exception to the Wiretap Act.

If you have a legal question or issue involving the Wiretap Act or whether it is legal to make a particular recording, please contact Donoghue & Picker at [email protected] or 610-272-6800.