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My domicile has cameras placed by my landlord.

As far as I know, this is perfectly legal.

If I answer a phonecall within the field of view of my landlord's camera, and enable my phone's speaker, am I violating the two-party-consent law, since my landlord is recording the call?

As far as I know, it does not matter that I had no intention to record the call, I'm still violating the law.

rmcrear
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  • Comments have been moved to chat; please do not continue the discussion here. Before posting a comment below this one, please review the purposes of comments. Comments that do not request clarification or suggest improvements usually belong as an answer, on [meta], or in [chat]. Comments continuing discussion may be removed. – Dale M Feb 13 '24 at 21:19

2 Answers2

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There is a reasonable expectation of privacy in your home, so it is likely that the landlord’s 24/7 surveillance and recording of you violates some tenant rights law, but it may vary by state.

Anyway, the answer is it depends on both the wording of the law in your state, as well as what you may have agreed to in the lease. Let’s consider two scenarios to illustrate my point:

SCENARIO 1:

  • Your State Law contains wording such as “whoever records, or causes to be recorded, a private conversation without first obtaining consent..."
  • Your Lease contains words such as “I give consent to 24/7 video and audio recording of the premises, and acknowledge that it is my responsibility to inform any guests of this fact. The physical presence of guests, or their appearance via other means such as video conferencing, or audio captured from phone calls, shall create a presumption that they have been informed by the occupant, and give their consent to such recording.”

In this case the action of you putting them on speaker phone would knowingly and willfully cause a recording of them to be made, and you could reasonably be held liable.

SCENARIO 2:

  • Your State Law contains wording such as "whoever intentionally creates an audio recording without first obtaining consent..."
  • Your Lease contains words such as “I give consent to 24/7 video monitoring of the premises…”

In this case you may not have even realized that your landlord was also capturing and recording audio, and therefore did not “intentionally” record the conversation when you turned the speaker on.

A more detailed answer would require more information.

Michael Hall
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In addition to the other answer, from Michael Hall, this concern may also be a moot one.

The U.S. Court of Appeals for the 9th Circuit has held that two party consent statutes are unconstitutional. See Project Veritas v. Schmidt, 72 F. 4th 1043 (9th Cir. July 3, 2023) (holding Oregon's two-party consent statute unconstitutional) citing also Animal Legal Def. Fund. v. Wasden, 878 F.3d 1184 (9th Cir. 2018) (concluding that recording others implicates free speech rights).

Admittedly, however, this question has not been addressed in any other federal court appellate circuit and has not yet been ruled upon by any state supreme court or the U.S. Supreme Court.

ohwilleke
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  • I'm only about a third of a way through that decision, but if I'm understanding it correctly the ruling is not that arbitrary two party consent statutes are unconstitutional, but that the specific one before them was unconstitutional because it had various exceptions which rendered the law a content-based regulation of speech, which then subjected it to strict scrutiny (which they held it failed). – zibadawa timmy Feb 13 '24 at 23:39
  • @zibadawatimmy The analysis is a bit broader than the specific statute IMHO. – ohwilleke Feb 14 '24 at 00:33