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Expectation of Privacy In Surveillance Cameras
In last month's article, "Can You Hear Me Now — Privacy of Discussions," I examined case law involving cell site location Information (CSLI) to discuss why that case law is inconsistent and deeply problematic when it finds a "reasonable expectation of privacy," as the concept is understood, in CSLI when interpreting the Fourth Amendment under the U.S. Constitution's Bill of Rights and Article I, Section 8 of the Pennsylvania Constitution. In summary, I discussed how cases finding a "privacy" violation when law enforcement gathers, without a warrant, CSLI of a target's cellphone over a period of time to determine where the target was over that period, make little sense because the CSLI captured is intercepted from public atmospheres in which the target had no reasonable expectation of privacy to track the target's public movements, in which the target had no reasonable expectation of privacy.
Recently, in Commonwealth v. Mason, J-44-2020 No. 69 MAP 2019 (March 25, 2021), the Pennsylvania Supreme Court held that audio interceptions, made in the bedroom of toddler-aged victims of a nanny's physical and verbal abuse, when such interceptions were captured by a camera hidden in a bedroom of the house by the father (and house owner) of the toddler-aged victims, did not violate the rights of the defendant (the nanny) under the Wiretapping and Electronic Surveillance Act (Wiretap Act), 18 Pa.C.S. Sections 5701-5782, and so were admissible. The Supreme Court drew a proper and logical conclusion from the facts and the law and, hopefully, brought us closer to a reasonable look at the issue, but we still have a long way to go.
|The 'Mason' Case
In Mason, both the trial and Superior Court held that the defendant's motion to suppress should be granted because the father's installation and usage of the hidden "nanny cam" and the subsequent reception by the commonwealth of the tapes generated by the nanny cam, which tapes recorded both what could be seen or heard in the bedroom, violated the defendant's reasonable expectation of privacy. The Supreme Court reversed, voting 5-2, with the two dissenters offering opinions that strongly disagreed with the majority opinion.
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