2002 UCLA J.L. & Tech. Notes 20

Nanny-Cams and our Privacy
by Jessica Sann

We all have expectations of privacy in private places. But should we expect privacy in the home of another? The answer is no.

Parents and other proponents of nanny-cams argue that the installation of a hidden camera in their own home is not an invasion of privacy. http://www.dataworkz.com/childcaremagazine/ArchivesFolder/Issue5Archive.htm; http://www.colucciinvestigations.com/press.48hours.htm. The court has agreed. In State v. Diaz, 706 A.2d 264 (1998), the leading case on this topic, the court ruled that a videotape made by a hidden camera in the residence of the parents of the child was admissible as evidence in the lawsuit against the nanny for assault and child endangerment. The court decided that since there was an absence of state action, the Constitution did not protect the nanny's privacy in someone else's house. The court also held that a videotape without sound did not violate the Wiretapping and Electronic Surveillance Control Act, but furthermore, that sound was admissible because the parents had consented to their child being taped.

States vary on this particular issue, but most agree that a videotaping your nanny without her knowledge is perfectly legal so long as there is no sound. Audiotaping without the nanny's consent is an issue upon which the states are split. http://www.securityworld.com/library/family/videaotapeyournannylhtml

Websites that cater to parents urge installation of these cameras, and sell them in innocent looking packages - one looks like an air purifier, another like a stuffed animal. www.knowyournanny.com/prod02.htm. They also recommend that you do not tell the babysitter that the camera is present on the theory that nobody will expose her true nature when she is being watched. This raises the issue of what the cameras are really for - to protect children or to prosecute the offenders. It seems that the objective for parents should be to prevent the harm from happening in the first place, instead of prosecuting it after the fact. If a parent suspects abuse, the parent should advise the babysitter about a camera rather than installing one secretly. Otherwise, it seems that the parent is allowing the harm to happen, when he or she could have prevented it, and just as culpable as the babysitter.

In a system where we do not punish for thought, only for actions, it seems inconsistent to install secret cameras without warning to those who will be videotaped. After all, we don't care whether someone refrains from committing a crime because of the threat of punishment or because of a moral value - we only care that the person refrains from committing crime. One parent suggests that you do tell the nanny she will be taped during the initial interview - if she has a problem with it, do not hire her. http://www.dataworkz.com/childcaremagazine/ArchivesFolder/Issue5Archive.htm. One camera vendor claims that even if the criminal knows about the camera, it may not deter her. When would-be criminals know they are being taped, they are only on their best behavior for a while, and then revert to their criminal behavior. http://www.wwltv.com/gumbo/articles/nannycams.htm.

The court's admission of nanny-cam evidence, along with the increasing popularity of nanny-cams seems to indicate the start of an alarming trend where people use hidden cameras in their houses, not just to prosecute severe criminal wrongs, but to monitor all behavior. When people watch the tapes of their nanny, most of the time they see inadequate care, not abuse. Most parents who have video surveillance are unhappy when they see how the nanny is behaving. http://www.todaysparent.com/family_life/article.jsp?cId=3684. The question remains whether the parents should be able to use the tapes to monitor the nanny's behavior in the absence of abuse. Courts have yet to confront the situation of, for example, a nanny's wrongful discharge on the basis of a nanny-cam tape. It is unclear whether, in the absence of a criminal action, a court will uphold or deny the right to privacy.








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