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This means that you, the recorder, may know, but the other party doesn’t need to.
Some states, including California (where the above-described scenario occurred), require dual consent, which means everybody involved needs to be in the loop.
Those places should be pretty obvious, as noted earlier—bedrooms and bathrooms are clear examples, as is a changing room if you have a pool.
But what if a guest is sleeping on your sofa, and likely using that room to dress?
Although you have the right to surveil intruders in your own home without their consent, today’s cameras introduce a new bugaboo: Many models, including the ones Wirecutter recommends, stay on and record 24 hours a day, not only when you’re away.
This means that everyone in the house—your family, guests, employees, cable installers and furniture deliverers, any people who have permission to be in your house—will be recorded, and if that recording includes audio, and if you’re in a state that requires dual consent, you may want to warn them, or you could run afoul of wiretapping laws.
Let’s say you invite some friends over, and one of those friends is Lady Gaga. First, you never received consent for the recording (hello, wiretapping law), and second, you can’t use a recording for commercial gain without the subject’s consent.
Now you have video of Lady Gaga sitting in your kitchen, playing with your cat, swimming in your pool. A few cameras allow you to solve the wiretapping conundrum by simply turning off audio recording, but even if you can do so, would you really want to turn off a feature you paid for?
The first: You can’t record video in any location where a person would expect to have a high degree of privacy.
“If you don’t do anything with the recording, then the question [of legality] is entirely academic,” he said.
But if you do something with the recording, the situation changes. In this case, what you do with the footage matters.
He told us it’s a common misconception that window decals or yard signs (and the expectation that visitors see and recognize them) qualify as consent.
Yet Kirschenbaum is not all that concerned about consent for home cameras, because a lot of the matter comes down to what you’re doing with the recording, or what you intend to do.