Video and Audio Recording in Domestic Cases

Is there a legal difference between an audio and video recording of someone, compared with a video recording of someone? Moreover, if the recording is not sent electronically, but stored at the location of the recorded individual, is it still a violation of the wiretapping statute?

What are the ramifications, if, during a divorce in which there are no minor children or custody issues, a non-resident spouse installs and uses surveillance equipment in the residence without the knowledge or consent of the resident spouse?

This article discusses the issue of recording by private individuals and not by the government or its agents. The Fourth Amendment protection against unlawful searches and seizures proscribes only governmental action, and is wholly inapplicable to “a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the Government or with the participation or knowledge of any governmental official.” United States v. Jacobsen, 466 U.S. 109, 113 (U.S. 1984).

State and Federal Wiretapping Statutes

New Jersey adopted the Wiretapping and Electronic Surveillance Control Act under N.J.S.A. 2A:156A. Section 24 of the Act provides a cause of action for damages against a person who intercepts, discloses or uses or procures any other person to intercept, disclose or use such communication. Damages are actual damages, capped at $1,000, punitive damages and attorneys' fees.

The Federal Wiretapping Statute; Title I of the Electronic Communications Privacy Act (ECPA) regulates the interception for domestic purposes of wire, oral, or electronic communications. United States v. Koyomejian, 970 F.2d 536 (9th Cir. 1992) (citing 18 U.S.C.S. ” 2510-2521). The statute defines a “wire communication” as “any aural transfer made ' through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the point of reception ' .” Id. (emphasis added). An “oral communication” is defined as “any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation ' .” Id. (emphasis added). An “electronic communication” is “any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted ' by a wire ' .” Id. (emphasis added). Finally, “intercept” means “the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device.” Id. (emphasis added). As the Supreme Court stated, discussing 18 U.S.C. ” 2510-20 (1968) (amended 1970, 1986, 1988) (“Title III”), the predecessor of Title I, the statute “is concerned only with orders 'authorizing or approving the interception of a wire or oral communication ' .'” Id.

The Foreign Intelligence Surveillance Act (FISA) regulates “electronic surveillance,” which it defines quite broadly to include “the installation or use of an electronic, mechanical, or other surveillance device in the United States for monitoring to acquire information, other than from a wire or radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes.” Koyomejian, 970 F. 2d at 540 (citing 50 U.S.C. ' 1802(a)). The FISA only applies to surveillance designed to gather information relevant to foreign intelligence. Id. (FISA authorizes surveillance only when “the purpose of the surveillance is to obtain foreign intelligence information”).

New Jersey's Wiretap Act, the New Jersey Wiretapping and Electronic Surveillance Control Act, N.J.S.A. 2A:156A-3, enacted in 1968 and subsequently amended, was “modeled” after Title III of the Federal Omnibus Crime Control Act and Safe Streets Act. State v. Diaz, 308 N.J. Super. 504, 509 (App.Div. 1998). The New Jersey Act is more restrictive than the federal act in some aspects. Id. For example, New Jersey's “minimization provision” was intended by the Legislature to lay down stricter minimization guidelines than those imposed by Congress with respect to the federal act. Id. However, when sections of the federal and state acts are substantially similar in language, it is appropriate to conclude that the New Jersey Legislature's “intent in enacting the sections of the Wiretapping and Electronics Surveillance Act ' was simply to follow the federal act.” Id. As such, often we can look to interpretation of the federal wiretap act for guidance.

If a Recording Device Is Incapable of Recording Sound,
There Can Be No Violation

In Koyomejian, the government began both audio and silent video surveillance on a business suspected of laundering cash receipts from narcotics trafficking. Koyomejian, 970 F. 2d. While the defendants argued that domestic silent video surveillance is prohibited by Title I, or alternatively that it is regulated by Title I, the government claimed such surveillance is neither prohibited nor regulated by the statute. Id. at 538. The court held that Title 1 does not address silent video surveillance, because the statute, by its plain meaning, did not apply to silent video surveillance. Id. Instead, the court likened silent video recording to pen registers, stating that the latter “are not subject to the statute because '[they] do not hear sound ' . [they] do not accomplish the 'aural acquisition' of anything [, and they] present the information in a form to be interpreted by sight rather than by hearing.” Id. at 539. The court stated that “this analysis applies equally to silent video surveillance.” Additionally, the Koyomejian court pointed out that the legislative history of Title I also indicates the statute does not regulate silent video surveillance: “The Senate committee report, after repeating the statutory definition of 'aural acquisition,' remarks 'other forms of surveillance are not within the proposed legislation.'” Id. at 539. That report also stated that “if law enforcement officials were to install their own cameras and create their own closed circuit television picture of a meeting, the capturing of the video images would not be an interception under the statute because there would be no interception of the contents of an electronic communication,” but “intercepting the audio portion of the meeting would be an interception of an oral communication, and the statute would apply to that portion.” Id. Ultimately, the Koyomejian court ruled that “neither ' 2511(2)(f), nor anything else in the text or legislative history of Title I or the FISA, prohibits silent video surveillance for domestic purposes.” Id. at 540.

Similarly, speaking on silent video surveillance, the court in United States v. Torres also came up with an analogous conclusion when looking at the legislative history. The court stated that it was willing to go further and hold that warrants for television surveillance are subject to Title III, “as warrants for bugging and wiretapping are ' . When Congress has indicated the domain of a statute as clearly as it did when it enacted Title III, we cannot apply the statute outside its domain merely because we are confident that if Congress had known then what we know now it would have used more general language. Congress said in language that could not be clearer that Title III is about the interception of wire and oral communications and that interception means aural acquisition. There is no way in which these words can be read to include silent television surveillance; and the legislative history ' indicates that the exclusion from the scope of the statute of other methods of surveillance besides those defined in the statute was deliberate.” United States v. Torres, 751 F.2d 875, 885 (7th Cir. Ill. 1984).

While the Koyomejian court's ruling was largely reliant on the legislative history's inability to address silent video surveillance, the Torres court instead takes this lack of mention as a deliberate intent to exclude silent video surveillance from the protection of the statute.

State v. Diaz, supra, was a New Jersey case involving parents who secretly videotaped their home after leaving their child with a nanny, in order to observe the nanny's behavior while caring for their child. The defendant contended that the videotape violated the New Jersey Act. Because of the similarity between the provisions of the NJ Act with which the court was dealing and their federal counterparts, the court decided to “look to interpretation of the federal wiretap act for guidance in determining whether a video surveillance is covered under our law.” Id. at 510. The Diaz court cited Torres and United States v. Falls, 34 F.3d 674, 679 (8th Cir. 1994), in which the court found that “every circuit to have addressed this issue has concluded that Title I and [the Foreign Intelligence Surveillance Act] neither regulate nor prohibit domestic silent video surveillance. Consequently, the court decided that, “given the similar language of our statute and the legislative intent in using such language in our Wiretap Act ' we follow the federal lead and conclude that our Act was not intended to apply to a recorded silent video surveillance or the video portion of a videotape which includes a sound component.” Diaz, 308 F.3d at 512.

From the above cases, it is evident that a recording device without the ability to record audio cannot lead to a violation of either the federal or state wiretap act.

If the Device Was Capable of Recording Sound, a Determination of a Party's Reasonable Expectation of Privacy Is Necessary

If the recording device is capable of recording audio, then there may be a violation of the federal or state wiretap statutes. The court in PBA Local No. 38 v. Woodbridge Police Dep't, 832 F. Supp. 808 (D.N.J. 1993) stated that “both the federal and state wiretap statutes cover the interception of two kinds of communications, 'wire' and 'oral.' Both statutes define 'oral communication' to include 'any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation.” Id. at 819. The federal and state definitions of “wire communication” differ slightly, but both include language that calls for a transfer made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the point of reception. Id. The PBA court stated that “courts interpreting this language in light of the legislative history of the federal act have opined that the 'expectation of privacy' language in the statute was intended to parallel the language and standard of Katz, making the 'reasonable expectation of privacy' highly relevant to claimed interceptions of oral conversations.” Id.

It is clear that parties have a reasonable expectation of privacy in their own homes. Even if the parties have separated and the non-resident spouse is allowed access to a residence, the resident spouse has a reasonable expectation of privacy. As such, the non-resident party's use of surveillance would be an invasion of the resident party's privacy. If it recorded audio, then it would fall under both the federal and state definition of “wire communication,” and the non-resident party would then be in violation of the statutes by intercepting such a communication. The PBA court further stated that “courts which have considered the issue have generally determined that conversations which take place in enclosed, indoor rooms are protected.”

A New Jersey appellate court, in Hornberger v. American Broadcasting Companies, Inc., 351 N.J. Super. 577 (App.Div. 2002), also addressed the issue of when the statute has been violated. Citing PBA, among other cases, the Hornberger court also held that the reasonable expectation of privacy was highly relevant to claims of interception of communications. N.J.S.A. 2A:156A-2(c) defines “intercept” as “the aural or other acquisition of the contents of any ' oral communication through the use of any electronic, mechanical or other device.” Id. at 621. The court in Hornberger, when speaking of interception of communications, stated that “courts which have considered the issue have generally determined that conversations which take place in enclosed, indoor rooms are protected.” Id. This also shows that the expectation of privacy is the key feature in determining whether a communication has been intercepted, and, thereby, a wiretap statute has been violated.

Additionally, the court in Hornberger stated that “the New Jersey Act allows members of the public to secretly record conversations when the speakers have no reasonable expectation of privacy, N.J.S.A. 2A:156A-2(b), or when one party to the conversation consents.” Id. at 627. Again, this shows that the key feature of a violation of the wiretap statute is that the person whose communication has been intercepted has had a reasonable expectation of privacy. Thus, it is likely not as important whether the recording device simply recorded and stored the communications or also transferred them to another location. In either case, the communications have been intercepted through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the point of reception.

It is fairly apparent that a resident spouse would have an expectation of privacy. Thus, an interception of his communications would necessarily be an invasion of privacy, and would then be a violation of the wiretap statutes.

If the Device Only Recorded Video,
It Was Still an Invasion of a Resident Spouse's Privacy

While the silent video surveillance may not have violated the wiretapping statute, it would be an invasion of a resident spouses's privacy. The Restatement of Torts lists the four areas of invasion of privacy as generally including: 1) unreasonable intrusion; 2) appropriation of the other's name or likeness; 3) unreasonable publicity given to one's private life; and 4) publicity that normally places the other in a false light before the public. 3 Restatement, Torts 2d, ' 562A at 376 (1977). The issue of unreasonable intrusion on a person's seclusion has been addressed by numerous courts. In Bisbee v. John C. Conover Agency, Inc., 186 N.J. Super. 335, 340 (App.Div. 1982), the court, citing the Restatement, defined it as follows:

The invasion may be by physical intrusion into a place in which the plaintiff has secluded himself, as when the defendant forces his way into the plaintiff's room in a hotel or insists over the plaintiff's objection in entering his home. It may also be by the use of the defendant's senses, with or without mechanical aids, to oversee or overhear the plaintiff's private affairs, as by looking into his upstairs windows with binoculars or tapping his telephone wires. It may be by some other form of investigation or examination into his private concerns, as by opening his private and personal mail, searching his safe or his wallet, examining his private bank account, or compelling him by a forged court order to permit an inspection of his personal documents. The intrusion itself makes the defendant subject to liability, even though there is no publication or other use of any kind of the photograph or information outlined.

The court added that “the thrust of this aspect of the tort is, in other words, that a person's private, personal affairs should not be pried into.” In the example herein, while a silent video surveillance may not violate the wiretapping statute because it does not have the capability of voice recording and therefore no aural transfer is made, it did nevertheless allow one to surreptitiously monitor and observe another's private affairs. In such example, the non-resident spouse pried into the resident spouse's private and personal affairs, and this intrusion itself makes the non-resident spouse subject to liability.

In Castro v. NYT Television, 384 N.J. Super. 601, 609 (App.Div. 2006) the court, also citing the Restatement, similarly found that “one who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.” The court held that “to establish liability for this tort, a plaintiff must show that 'the interference with the plaintiff's seclusion is a substantial one, of a kind that would be highly offensive to the ordinary reasonable man, as the result of conduct to which the reasonable man would strongly object.'” Even if the devices here did not record audio, it cannot be debated that they interfered with the resident spouse's seclusion, and the interference was a substantial one, as the cameras videotaped movements throughout the day. It also cannot be debated that an ordinary reasonable man would be highly offended to find that his every movement was being captured without his knowledge. As such, it is without question that a reasonable man would object to the type of intrusion experienced by the resident spouse.

Of course, whether there was an invasion of privacy hinges first on whether there was an expectation of privacy. In White v. White, 344 N.J. Super. 211, 222 (Ch.Div. 2001), after stating that “the crux of the issue is that the intrusion must be 'highly offensive to a reasonable person,” the court added that “that conclusion turns on one's reasonable expectation of privacy ' a 'reasonable person' cannot conclude that an intrusion is 'highly offensive' when the actor intrudes into an area in which the victim has either a limited or no expectation of privacy.” In the instant example, the invasion took place in the resident spouse's home ' the place where a person has the highest expectation of privacy (Oliver v. United States, 466 U.S. 170, 178 (U.S. 1984)), the court stated that the “Fourth Amendment has stressed 'the overriding respect for the sanctity of the home that has been embedded in our traditions since the origins of the Republic.'” While it is true that the non-resident spouse was allowed to access the home at certain times, at all other times the resident spouse fully expected to be alone or with only those persons he chose to have in his home. Thus, one's expectation of privacy in his/her own home when the non-resident spouse was not there was entirely reasonable.

The situation in Thompson v. Johnson County Community College, 930 F. Supp. 501 (D. Kan. 1996) dealt with private parties. In Thompson, plaintiff employees brought an action against defendant employers alleging violations of Title I of the ECPA and state law relating to a video surveillance camera installed in the storage room/locker area. The court held that “domestic silent video surveillance is subject to Fourth Amendment prohibitions against unreasonable searches ' however, this does not mean that defendants' use of video surveillance automatically violated plaintiffs' Fourth Amendment rights.” Id. at 507. “Rather,” it continued, “the court first must determine whether plaintiffs had a reasonable expectation of privacy in their locker area ' if plaintiffs had no reasonable expectation of privacy in this area, there is 'no Fourth Amendment violation regardless of the nature of the search.'” Id. “To establish a reasonable expectation of privacy in the security personnel locker area,” the court concluded, “plaintiffs must demonstrate that they had a subjective expectation of privacy in that area and that this expectation was objectively reasonable.” Id.

As such, the resident spouse certainly had a subjective expectation of privacy in her home, and it is without question that this expectation was objectively reasonable. Thus, it is safe to conclude that society recognizes one's expectation of privacy in one's home as reasonable.

The Invasion of Privacy Was Outside the
Bounds of Consent

Even if the resident spouse consented to the non-resident inhabiting the house at certain times, this consent, as do all consents, has its bounds, and the non-resident's actions can step outside these bounds.

In State v. Robinson, 74 N.J. Super. 305, (Cty. Ct. 1962), the court addressed issues of consent with regard to the government's ability to take action against private citizens. While government action is not involved in this example, the Robinson court's analysis of consent still applies. In Robinson, the court stated that “searches and seizures made without a proper warrant are generally to be regarded as unreasonable and violative of the Fourth Amendment,” and consent to such a search or seizure “must be proved by clear and positive testimony, and it must be established that there was no duress or coercion, actual or implied.” State v. Robinson, 305, 310 (citing Amos v. United States, 255 U.S. 313, 41 S.Ct. 266, 65 L.Ed. 654; United States v. Kelih, D.C.S.D. Ill. 1921, 272 F. 484. The court added that the consent must be “unequivocal and specific,” and “freely and intelligently given.” Id.

Here, there is no question that the resident spouse consented to the non-resident's occasional use of the house. This consent was given free of duress or coercion and was unequivocal, specific, and freely and intelligently given. However, because it was specific, the non-resident was aware of the bounds of the consent. That is, the non-resident was free to use the house at certain times with the resident's permission, and was not free to use it outside of those certain times. The silent video surveillance that was present at times when the non-resident was not allowed to use the house and was not present constitutes use as well ' use outside of the bounds of the consent given by the resident spouse. As such, the non-resident did not have the resident's consent to have the silent video surveillance running when he was not present. There is no question that the resident spouse did not consent to the non-resident's use of the silent video surveillance during the times that only the resident was present in the house, and so its presence was a clear invasion of the resident spouse's privacy.

Conclusion

While there is no question that video surveillance would intrude on a resident spouse's privacy, it is only a violation of the federal or state wiretap acts if it has a device capable of recording audio. Absent this, the surveillance is of the silent video kind and not in violation of the aforementioned Acts. If the surveillance recorded audio, then it is a violation of the wiretap act if it was an invasion of the resident spouse's privacy, and the spouse had a reasonable expectation of privacy. A silent video surveillance taken without permission is still an invasion of privacy; consequently, the resident spouse's privacy was invaded regardless of whether the recording device could record audio. A resident spouse has an expectation of privacy while in the comfort of his/her own home. If a non-resident spouse steps out of the bounds of the consent given to him/her, it constitutes an invasion of privacy by using the video surveillance while s/he was not using the house. This use alone, regardless of whether the non-resident watched or distributed the resulting tapes, is a violation of the resident spouse's right to privacy.

Is there a legal difference between an audio and video recording of someone, compared with a video recording of someone? Moreover, if the recording is not sent electronically, but stored at the location of the recorded individual, is it still a violation of the wiretapping statute?

What are the ramifications, if, during a divorce in which there are no minor children or custody issues, a non-resident spouse installs and uses surveillance equipment in the residence without the knowledge or consent of the resident spouse?

This article discusses the issue of recording by private individuals and not by the government or its agents. The Fourth Amendment protection against unlawful searches and seizures proscribes only governmental action, and is wholly inapplicable to “a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the Government or with the participation or knowledge of any governmental official.” United States v. Jacobsen , 466 U.S. 109, 113 (U.S. 1984).

State and Federal Wiretapping Statutes

New Jersey adopted the Wiretapping and Electronic Surveillance Control Act under N.J.S.A. 2A:156A. Section 24 of the Act provides a cause of action for damages against a person who intercepts, discloses or uses or procures any other person to intercept, disclose or use such communication. Damages are actual damages, capped at $1,000, punitive damages and attorneys' fees.

The Federal Wiretapping Statute; Title I of the Electronic Communications Privacy Act (ECPA) regulates the interception for domestic purposes of wire, oral, or electronic communications. United States v. Koyomejian , 970 F.2d 536 (9th Cir. 1992) (citing 18 U.S.C.S. ” 2510-2521). The statute defines a “wire communication” as “any aural transfer made ' through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the point of reception ' .” Id. (emphasis added). An “oral communication” is defined as “any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation ' .” Id. (emphasis added). An “electronic communication” is “any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted ' by a wire ' .” Id. (emphasis added). Finally, “intercept” means “the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device.” Id. (emphasis added). As the Supreme Court stated, discussing 18 U.S.C. ” 2510-20 (1968) (amended 1970, 1986, 1988) (“Title III”), the predecessor of Title I, the statute “is concerned only with orders 'authorizing or approving the interception of a wire or oral communication ' .'” Id.

The Foreign Intelligence Surveillance Act (FISA) regulates “electronic surveillance,” which it defines quite broadly to include “the installation or use of an electronic, mechanical, or other surveillance device in the United States for monitoring to acquire information, other than from a wire or radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes.” Koyomejian, 970 F. 2d at 540 (citing 50 U.S.C. ' 1802(a)). The FISA only applies to surveillance designed to gather information relevant to foreign intelligence. Id. (FISA authorizes surveillance only when “the purpose of the surveillance is to obtain foreign intelligence information”).

New Jersey's Wiretap Act, the New Jersey Wiretapping and Electronic Surveillance Control Act, N.J.S.A. 2A:156A-3, enacted in 1968 and subsequently amended, was “modeled” after Title III of the Federal Omnibus Crime Control Act and Safe Streets Act. State v. Diaz , 308 N.J. Super. 504, 509 (App.Div. 1998). The New Jersey Act is more restrictive than the federal act in some aspects. Id. For example, New Jersey's “minimization provision” was intended by the Legislature to lay down stricter minimization guidelines than those imposed by Congress with respect to the federal act. Id. However, when sections of the federal and state acts are substantially similar in language, it is appropriate to conclude that the New Jersey Legislature's “intent in enacting the sections of the Wiretapping and Electronics Surveillance Act ' was simply to follow the federal act.” Id. As such, often we can look to interpretation of the federal wiretap act for guidance.

If a Recording Device Is Incapable of Recording Sound,
There Can Be No Violation

In Koyomejian, the government began both audio and silent video surveillance on a business suspected of laundering cash receipts from narcotics trafficking. Koyomejian, 970 F. 2d. While the defendants argued that domestic silent video surveillance is prohibited by Title I, or alternatively that it is regulated by Title I, the government claimed such surveillance is neither prohibited nor regulated by the statute. Id. at 538. The court held that Title 1 does not address silent video surveillance, because the statute, by its plain meaning, did not apply to silent video surveillance. Id. Instead, the court likened silent video recording to pen registers, stating that the latter “are not subject to the statute because '[they] do not hear sound ' . [they] do not accomplish the 'aural acquisition' of anything [, and they] present the information in a form to be interpreted by sight rather than by hearing.” Id. at 539. The court stated that “this analysis applies equally to silent video surveillance.” Additionally, the Koyomejian court pointed out that the legislative history of Title I also indicates the statute does not regulate silent video surveillance: “The Senate committee report, after repeating the statutory definition of 'aural acquisition,' remarks 'other forms of surveillance are not within the proposed legislation.'” Id. at 539. That report also stated that “if law enforcement officials were to install their own cameras and create their own closed circuit television picture of a meeting, the capturing of the video images would not be an interception under the statute because there would be no interception of the contents of an electronic communication,” but “intercepting the audio portion of the meeting would be an interception of an oral communication, and the statute would apply to that portion.” Id. Ultimately, the Koyomejian court ruled that “neither ' 2511(2)(f), nor anything else in the text or legislative history of Title I or the FISA, prohibits silent video surveillance for domestic purposes.” Id. at 540.

Similarly, speaking on silent video surveillance, the court in United States v. Torres also came up with an analogous conclusion when looking at the legislative history. The court stated that it was willing to go further and hold that warrants for television surveillance are subject to Title III, “as warrants for bugging and wiretapping are ' . When Congress has indicated the domain of a statute as clearly as it did when it enacted Title III, we cannot apply the statute outside its domain merely because we are confident that if Congress had known then what we know now it would have used more general language. Congress said in language that could not be clearer that Title III is about the interception of wire and oral communications and that interception means aural acquisition. There is no way in which these words can be read to include silent television surveillance; and the legislative history ' indicates that the exclusion from the scope of the statute of other methods of surveillance besides those defined in the statute was deliberate.” United States v. Torres , 751 F.2d 875, 885 (7th Cir. Ill. 1984).

While the Koyomejian court's ruling was largely reliant on the legislative history's inability to address silent video surveillance, the Torres court instead takes this lack of mention as a deliberate intent to exclude silent video surveillance from the protection of the statute.

State v. Diaz, supra, was a New Jersey case involving parents who secretly videotaped their home after leaving their child with a nanny, in order to observe the nanny's behavior while caring for their child. The defendant contended that the videotape violated the New Jersey Act. Because of the similarity between the provisions of the NJ Act with which the court was dealing and their federal counterparts, the court decided to “look to interpretation of the federal wiretap act for guidance in determining whether a video surveillance is covered under our law.” Id. at 510. The Diaz court cited Torres and United States v. Falls , 34 F.3d 674, 679 (8th Cir. 1994), in which the court found that “every circuit to have addressed this issue has concluded that Title I and [the Foreign Intelligence Surveillance Act] neither regulate nor prohibit domestic silent video surveillance. Consequently, the court decided that, “given the similar language of our statute and the legislative intent in using such language in our Wiretap Act ' we follow the federal lead and conclude that our Act was not intended to apply to a recorded silent video surveillance or the video portion of a videotape which includes a sound component.” Diaz, 308 F.3d at 512.

From the above cases, it is evident that a recording device without the ability to record audio cannot lead to a violation of either the federal or state wiretap act.

If the Device Was Capable of Recording Sound, a Determination of a Party's Reasonable Expectation of Privacy Is Necessary

If the recording device is capable of recording audio, then there may be a violation of the federal or state wiretap statutes. The court in PBA Local No. 38 v. Woodbridge Police Dep ' t , 832 F. Supp. 808 (D.N.J. 1993) stated that “both the federal and state wiretap statutes cover the interception of two kinds of communications, 'wire' and 'oral.' Both statutes define 'oral communication' to include 'any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation.” Id. at 819. The federal and state definitions of “wire communication” differ slightly, but both include language that calls for a transfer made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the point of reception. Id. The PBA court stated that “courts interpreting this language in light of the legislative history of the federal act have opined that the 'expectation of privacy' language in the statute was intended to parallel the language and standard of Katz, making the 'reasonable expectation of privacy' highly relevant to claimed interceptions of oral conversations.” Id.

It is clear that parties have a reasonable expectation of privacy in their own homes. Even if the parties have separated and the non-resident spouse is allowed access to a residence, the resident spouse has a reasonable expectation of privacy. As such, the non-resident party's use of surveillance would be an invasion of the resident party's privacy. If it recorded audio, then it would fall under both the federal and state definition of “wire communication,” and the non-resident party would then be in violation of the statutes by intercepting such a communication. The PBA court further stated that “courts which have considered the issue have generally determined that conversations which take place in enclosed, indoor rooms are protected.”

A New Jersey appellate court, in Hornberger v. American Broadcasting Companies, Inc. , 351 N.J. Super. 577 (App.Div. 2002), also addressed the issue of when the statute has been violated. Citing PBA, among other cases, the Hornberger court also held that the reasonable expectation of privacy was highly relevant to claims of interception of communications. N.J.S.A. 2A:156A-2(c) defines “intercept” as “the aural or other acquisition of the contents of any ' oral communication through the use of any electronic, mechanical or other device.” Id. at 621. The court in Hornberger, when speaking of interception of communications, stated that “courts which have considered the issue have generally determined that conversations which take place in enclosed, indoor rooms are protected.” Id. This also shows that the expectation of privacy is the key feature in determining whether a communication has been intercepted, and, thereby, a wiretap statute has been violated.

Additionally, the court in Hornberger stated that “the New Jersey Act allows members of the public to secretly record conversations when the speakers have no reasonable expectation of privacy, N.J.S.A. 2A:156A-2(b), or when one party to the conversation consents.” Id. at 627. Again, this shows that the key feature of a violation of the wiretap statute is that the person whose communication has been intercepted has had a reasonable expectation of privacy. Thus, it is likely not as important whether the recording device simply recorded and stored the communications or also transferred them to another location. In either case, the communications have been intercepted through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the point of reception.

It is fairly apparent that a resident spouse would have an expectation of privacy. Thus, an interception of his communications would necessarily be an invasion of privacy, and would then be a violation of the wiretap statutes.

If the Device Only Recorded Video,
It Was Still an Invasion of a Resident Spouse's Privacy

While the silent video surveillance may not have violated the wiretapping statute, it would be an invasion of a resident spouses's privacy. The Restatement of Torts lists the four areas of invasion of privacy as generally including: 1) unreasonable intrusion; 2) appropriation of the other's name or likeness; 3) unreasonable publicity given to one's private life; and 4) publicity that normally places the other in a false light before the public. 3 Restatement, Torts 2d, ' 562A at 376 (1977). The issue of unreasonable intrusion on a person's seclusion has been addressed by numerous courts. In Bisbee v. John C. Conover Agency, Inc. , 186 N.J. Super. 335, 340 (App.Div. 1982), the court, citing the Restatement, defined it as follows:

The invasion may be by physical intrusion into a place in which the plaintiff has secluded himself, as when the defendant forces his way into the plaintiff's room in a hotel or insists over the plaintiff's objection in entering his home. It may also be by the use of the defendant's senses, with or without mechanical aids, to oversee or overhear the plaintiff's private affairs, as by looking into his upstairs windows with binoculars or tapping his telephone wires. It may be by some other form of investigation or examination into his private concerns, as by opening his private and personal mail, searching his safe or his wallet, examining his private bank account, or compelling him by a forged court order to permit an inspection of his personal documents. The intrusion itself makes the defendant subject to liability, even though there is no publication or other use of any kind of the photograph or information outlined.

The court added that “the thrust of this aspect of the tort is, in other words, that a person's private, personal affairs should not be pried into.” In the example herein, while a silent video surveillance may not violate the wiretapping statute because it does not have the capability of voice recording and therefore no aural transfer is made, it did nevertheless allow one to surreptitiously monitor and observe another's private affairs. In such example, the non-resident spouse pried into the resident spouse's private and personal affairs, and this intrusion itself makes the non-resident spouse subject to liability.

In Castro v. NYT Television , 384 N.J. Super. 601, 609 (App.Div. 2006) the court, also citing the Restatement, similarly found that “one who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.” The court held that “to establish liability for this tort, a plaintiff must show that 'the interference with the plaintiff's seclusion is a substantial one, of a kind that would be highly offensive to the ordinary reasonable man, as the result of conduct to which the reasonable man would strongly object.'” Even if the devices here did not record audio, it cannot be debated that they interfered with the resident spouse's seclusion, and the interference was a substantial one, as the cameras videotaped movements throughout the day. It also cannot be debated that an ordinary reasonable man would be highly offended to find that his every movement was being captured without his knowledge. As such, it is without question that a reasonable man would object to the type of intrusion experienced by the resident spouse.

Of course, whether there was an invasion of privacy hinges first on whether there was an expectation of privacy. In White v. White , 344 N.J. Super. 211, 222 (Ch.Div. 2001), after stating that “the crux of the issue is that the intrusion must be 'highly offensive to a reasonable person,” the court added that “that conclusion turns on one's reasonable expectation of privacy ' a 'reasonable person' cannot conclude that an intrusion is 'highly offensive' when the actor intrudes into an area in which the victim has either a limited or no expectation of privacy.” In the instant example, the invasion took place in the resident spouse's home ' the place where a person has the highest expectation of privacy ( Oliver v. United States , 466 U.S. 170, 178 (U.S. 1984)), the court stated that the “Fourth Amendment has stressed 'the overriding respect for the sanctity of the home that has been embedded in our traditions since the origins of the Republic.'” While it is true that the non-resident spouse was allowed to access the home at certain times, at all other times the resident spouse fully expected to be alone or with only those persons he chose to have in his home. Thus, one's expectation of privacy in his/her own home when the non-resident spouse was not there was entirely reasonable.

The situation in Thompson v. Johnson County Community College , 930 F. Supp. 501 (D. Kan. 1996) dealt with private parties. In Thompson, plaintiff employees brought an action against defendant employers alleging violations of Title I of the ECPA and state law relating to a video surveillance camera installed in the storage room/locker area. The court held that “domestic silent video surveillance is subject to Fourth Amendment prohibitions against unreasonable searches ' however, this does not mean that defendants' use of video surveillance automatically violated plaintiffs' Fourth Amendment rights.” Id. at 507. “Rather,” it continued, “the court first must determine whether plaintiffs had a reasonable expectation of privacy in their locker area ' if plaintiffs had no reasonable expectation of privacy in this area, there is 'no Fourth Amendment violation regardless of the nature of the search.'” Id. “To establish a reasonable expectation of privacy in the security personnel locker area,” the court concluded, “plaintiffs must demonstrate that they had a subjective expectation of privacy in that area and that this expectation was objectively reasonable.” Id.

As such, the resident spouse certainly had a subjective expectation of privacy in her home, and it is without question that this expectation was objectively reasonable. Thus, it is safe to conclude that society recognizes one's expectation of privacy in one's home as reasonable.

The Invasion of Privacy Was Outside the
Bounds of Consent

Even if the resident spouse consented to the non-resident inhabiting the house at certain times, this consent, as do all consents, has its bounds, and the non-resident's actions can step outside these bounds.

In State v. Robinson , 74 N.J. Super. 305, (Cty. Ct. 1962), the court addressed issues of consent with regard to the government's ability to take action against private citizens. While government action is not involved in this example, the Robinson court's analysis of consent still applies. In Robinson, the court stated that “searches and seizures made without a proper warrant are generally to be regarded as unreasonable and violative of the Fourth Amendment,” and consent to such a search or seizure “must be proved by clear and positive testimony, and it must be established that there was no duress or coercion, actual or implied.” State v. Robinson , 305, 310 (citing Amos v. United States , 255 U.S. 313, 41 S.Ct. 266, 65 L.Ed. 654; United States v. Kelih , D.C.S.D. Ill. 1921, 272 F. 484. The court added that the consent must be “unequivocal and specific,” and “freely and intelligently given.” Id.

Here, there is no question that the resident spouse consented to the non-resident's occasional use of the house. This consent was given free of duress or coercion and was unequivocal, specific, and freely and intelligently given. However, because it was specific, the non-resident was aware of the bounds of the consent. That is, the non-resident was free to use the house at certain times with the resident's permission, and was not free to use it outside of those certain times. The silent video surveillance that was present at times when the non-resident was not allowed to use the house and was not present constitutes use as well ' use outside of the bounds of the consent given by the resident spouse. As such, the non-resident did not have the resident's consent to have the silent video surveillance running when he was not present. There is no question that the resident spouse did not consent to the non-resident's use of the silent video surveillance during the times that only the resident was present in the house, and so its presence was a clear invasion of the resident spouse's privacy.

Conclusion

While there is no question that video surveillance would intrude on a resident spouse's privacy, it is only a violation of the federal or state wiretap acts if it has a device capable of recording audio. Absent this, the surveillance is of the silent video kind and not in violation of the aforementioned Acts. If the surveillance recorded audio, then it is a violation of the wiretap act if it was an invasion of the resident spouse's privacy, and the spouse had a reasonable expectation of privacy. A silent video surveillance taken without permission is still an invasion of privacy; consequently, the resident spouse's privacy was invaded regardless of whether the recording device could record audio. A resident spouse has an expectation of privacy while in the comfort of his/her own home. If a non-resident spouse steps out of the bounds of the consent given to him/her, it constitutes an invasion of privacy by using the video surveillance while s/he was not using the house. This use alone, regardless of whether the non-resident watched or distributed the resulting tapes, is a violation of the resident spouse's right to privacy.