Tech Corner: The Use of Audio and Video Equipment During Showings: Who’s listening?

Many property owners have video surveillance equipment both inside and outside their properties for both safety and security purposes. Therefore, real estate brokers should be aware of the proper use of video and audio equipment during showings to help buyers and sellers comply with state and federal law.  In 2014, the Commission wrote an article entitled “The Use of Audio/Video Equipment During Showings.” The article mentions Federal Statute 18 USC § 2511, which makes it unlawful for anyone to intentionally intercept any wire, oral, or electronic communication. This federal statute also prohibits the interception of oral communication, whether it is recorded or not. However, a person will not be violation of this federal statute if State law allows them to hear an oral communication, when a party to the conversation has consented.

State law, specifically, N.C.G.S. § 15A-286 et seq., the Electronic Surveillance Act, governs the interception and disclosure of wire, oral, or electronic communications. Under this Act, it is illegal for an individual to intercept, disclose, or use any oral, wire, or electronic communication without the consent of at least one party that is involved in the conversation.

As a broker, you should educate your seller on the Electronic Surveillance Act and the potential legal consequences that may result from violating a person’s privacy and/or not obtaining the necessary consent to record their communication.

It is essential that sellers exercise caution when using video and audio equipment in their homes, especially during showings, open houses, or virtual tours. The following questions will help brokers explain when it is permissible, if at all, for a seller to record communication.

Question: Is it permissible for a seller to either listen to or record a conversation between a potential buyer and their agent?

Answer: No. It is not permissible for a seller to listen in or record a conversation between a potential buyer and their agent because the seller is not a party to the conversation and they have not obtained the written consent of one of the parties.

Question: Can a seller videotape the interactions between a potential buyer and their agent?

Answer: Yes. However, the seller should exercise caution regarding the placement of the device to ensure a person’s privacy is not violated and the audio is turned off. Although the seller can videotape the people present on their property, an attempt to gain potentially confidential information about a buyer by listening to their conversation could result in criminal or civil liability.

Basically, the Electronic Surveillance Act speaks to oral or electronic communications and not video surveillance. It is possible for a seller to place a surveillance device (e.g. video) in the home without audio transmission. However,  sellers should be careful about where they place the device to ensure that an individual’s privacy is not violated. For example, they should not place the device in a bathroom. Although sellers may record video footage without audio, the Commission recommends that brokers advise their sellers not to use any device as a means to attempt to gain information about potential buyers or their agents.

 Sellers should not use non-recording audio devices like walkie-talkies or baby monitors. Although baby monitors and walkie-talkies do not record the conversation, the conversation is still being intercepted by the seller without the consent of the parties.

If you have additional questions or comments, please email Regulatory Affairs at regulatoryaffairs@ncrec.gov.