Does a PERS recording of a third person violate their right to privacy if they do not give consent? The short answer is…maybe.
We all know what a PERS system is, but what happens when a PERS recording is activated for something beyond its intended use and records a third person without that person’s consent? Can that recording violate the third person’s privacy? Three different Washington courts addressed this issue and each determined that the recording did not violate a criminal defendant’s privacy rights.
Inside the Case
The case and subsequent appellate decisions arise from a single incident, in which a criminal defendant was convicted of murder for the beating-death of his girlfriend, who was the daughter of an elderly PERS customer. The night of the murder, the PERS customer pushed the button on her system, and the monitoring center company recorded a conversation between the defendant and the customer as they sat on the front porch. During the conversation, the defendant admitting to killing his girlfriend, and then threatened to kill an aunt and uncle who had arrived at the home minutes earlier.
The prosecution became aware of the PERS recording on the sixth day of the criminal trial, immediately notified defense counsel, and quickly obtained a copy of the incriminating evidence. The defendant brought a motion based in part on a violation of Washington’s Privacy Act, and argued that the recording should not be used as evidence in the trial because the PERS company violated the Privacy Act when it recorded the conversation without his consent.
The Washington trial court denied the defendant’s motion to exclude the PERS recording and allowed it as evidence in the criminal trial. The trial court ruled there was no Privacy Act violation because the conversation was on the porch (as opposed to in a more private setting in the home), and because it was “being screamed out to the world,” the defendant could not have had an expectation of privacy. The trial court further held that the emergency communications exception applied to this set of facts. Washington’s Privacy Act includes an exception that allows a conversation to be recorded without the consent of all parties in certain emergencies such as fire, medical emergency, crime or disaster, or where the conversation conveys threats of extortion, blackmail, bodily harm or other unlawful requests or demands.
The criminal defendant filed several appeals after the trial court conviction and ultimately filed a petition for a writ of habeas corpus to a Washington district court. The district court recently addressed the same set of facts surrounding the PERS recording and upheld the Washington trial and appellate court’s decisions allowing the recording as evidence.
The appellate court held that because the recording was incriminating and not favorable to the defendant, there was no obligation to disclose the recording and no Constitutional violation occurred. The Washington appellate court explained that although the criminal prosecutor and the police are required to disclose evidence favorable to a defendant, and even though in this instance the police should have informed defense counsel that the recording existed, the police had no duty to actually obtain the incriminating recording.
In upholding this decision, the district court again explained that the prosecution in a criminal case must disclose evidence favorable to the accused, but here the evidence was incriminating and the prosecution did not become aware of it until after the trial had started, so the defendant’s rights were not violated.
Impact on PERS Providers & Monitoring Centers
This case seemingly raises more questions for PERS providers instead of providing answers or a framework for how to handle a PERS recording that captures something beyond its intended use. These questions include: Does your state require one-party or two-party notification to record a telephone conversation? Does your state have an emergency exception and how broad is the exception? Would the outcome of these cases have been different if the recording was made in the PERS customer’s living room where the defendant may be able to assert an expectation of privacy in the home? What if the recording was favorable to the defendant instead of incriminating? What obligation does the PERS provider have to notify law enforcement of a recording?
All states have privacy laws regarding the recording of private telephone conversations. Some states require only one party to be notified that the conversation is being recorded while others require that all parties give consent to the recording. States that require all parties to be notified include California, Connecticut, Delaware, Florida, Illinois, Massachusetts, Maryland, Michigan, Montana, New Hampshire, Pennsylvania and Washington.
As mentioned earlier, some states, like Washington, have an emergency exception that allows the recording of a private conversation without the consent of all parties in certain emergencies. Illinois also has an emergency exception that allows a conversation to be recorded without consent if a person who is a party to the conversation has a reasonable suspicion that another party to the conversation is committing, is about to commit or has committed a criminal offense against the person or a member of his/her immediate household, and there is reason to believe that evidence of the criminal offense may be obtained by the recording.
Further, some states, like California, allow for the recording of a private telephone conversation if “notice” is given to the parties by using an automatic tone warning device that automatically produces a distinct tone warning signal known as a beep tone. The beep tone must be audible to all parties to the communication and repeated at regular intervals during the course of the communication.
To help avoid Privacy Act violations, PERS providers should check state and local privacy laws and statutes, and determine what exceptions exist in their states. PERS providers can also protect themselves by putting policies and procedures in place for responding to subpoenas for recordings, and for testifying in court regarding the recordings. Providers can also consider including indemnity language in customer contracts in the event a customer uses the PERS system for something other than its intended use.
Philip R. Kujawa is a partner and Stacy Campbell-Viamontes is an associate in the law firm Hinshaw & Culbertson LLP. For more information, please email them at [email protected] or [email protected].
