In 2014, a new invention debuted: The Ring Video Doorbell. According to the company’s history, its founder was frustrated about missing package deliveries while he was out tinkering in his garage.[1] When he could not find an existing product to connect his doorbell to his smartphone, he invented one himself. Within ten years, as many as 30% of all homes in the United States would have smart cameras or video doorbells installed.[2]
Beware the Doorbell Cam
Given the current prevalence of these devices, potential buyers and others should be aware that they may be being recorded when they visit a new property. Our firm has seen examples of potential buyers having detailed discussions with their agents about how much to offer and what their maximum price might be—all within earshot of a seller’s doorbell camera and microphone. To avoid accidental disclosure of sensitive information, potential buyers should assume that anything they say while touring a home is being recorded.
But is it Legal?
That depends. Many states have eavesdropping laws, but statutes rarely keep pace with advancements in technology.
Colorado is a “one party consent” state. This means that any one party to a conversation may consent to recording, even if other parties do not know or consent. The applicable statute thus provides that a person commits the misdemeanor crime of eavesdropping if he or she knowingly records a conversation, while not visibly present, without the consent of at least one of the parties to the conversation.[3] This contrasts with a “two party consent” state such as California, where all participants must consent to recording of their conversations.[4]
For example, if Chrissy and Janet are having a discussion in Colorado, Janet can secretly record their conversation without Chrissy’s consent. But if Jack is hiding in the bushes nearby, then he could be guilty of a crime if he surreptitiously records what Chrissy and Janet are saying.
How this same analysis would apply to a doorbell camera is unclear. Colorado statutes allow property owners to use recording devices on their own premises “for security or business purposes if reasonable notice of the use of such devices is given to the public.”[5] Thus, those cute signs in stores that tell customers to “smile, you’re on camera” do more than merely discourage shoplifting; they also protect the business from being charged with illegally recording its patrons.
On the one hand, one could argue that doorbell cameras violate this law unless homeowners install signs indicating that they may be recording their guests. On the other hand, the modern ubiquity of these devices could mean that there is no longer a reasonable expectation of privacy when standing next to a doorbell camera, regardless of whether the property owners have posted notice.[6]
What Should Owners and Agents Do
At some point, legislation may catch up with technology and provide clearer guidance for what constitutes unlawful surveillance in one’s home or business. Until then, both owners and agents should proceed with caution.
For home and business owners, the ideal option is to post a sign at the front door or entrance to property, notifying any visitors that security cameras may be recording audio and video. As one example, this author (being a paranoid lawyer) had an inexpensive sign made for his own home in Colorado, which notes that security cameras and audio-video recordings are in use. The sign also cautions visitors to beware of dog,[7] and it says “no soliciting” for good measure (that last part is routinely ignored). Regardless of whether such signage is strictly necessary, it is an economical way to reduce the risk of a security camera being deemed illegal.
For real estate agents and potential buyers, the safest course is to assume that recording devices are always present, even in the absence of signage. While one could argue that a property owner is committing a crime by installing a doorbell camera or similar devices without posting notice, that may offer little consolation after confidential information has already been disclosed. As the saying goes, it may be too late to “unring the bell” once such details become public. Whenever an agent shows a home for sale, he or she should warn all visitors that the seller might be watching and listening, and to postpone any confidential discussions about price or other details until they are safely offsite.
Finally, one should always be sure to consult with qualified legal counsel when in doubt. We encourage readers with specific questions about privacy laws and real estate to contact attorney Jesse Witt at Frascona, Joiner, Goodman and Greenstein.
[1] www.aboutamazon.com/news/devices/a-brief-history-of-the-ring-video-doorbell-and-its-evolution-over-the-last-10-years
[2] www.parksassociates.com/blogs/press-releases/parks-associates-30-of-internet-households-own-either-a-smart-camera-or-a-smart-video-doorbell
[3] Colo. Rev. Stat. § 18-9-304(1).
[4] Cal. Penal Code § 632.
[5] Colo. Rev. Stat. § 18-9-305(1).
[6] See People v. Lesslie, 939 P.2d 443, 447 (Colo. App. 1996)(observing that eavesdropping prosecution under Colorado depends on whether speaker had reasonable expectation of privacy); see also Flanagan v. Flanagan, 41 P.3d 575, 582 (Cal. 2002)(holding that a conversation is confidential under California law “if a party to that conversation has an objectively reasonable expectation that the conversation is not being overheard or recorded.”).
[7] Under Colo. Rev. Stat. § 13-21-124(5)(b), a property owner may disclaim liability for dog attacks on site by clearly and conspicuously posting “no trespassing” or “beware of dog” signs.
