By Frederick A. Moreno, Deputy Legal Counsel
It seems that listing agents are being asked more frequently these days if sellers can keep some video or audio equipment “on” while their property is being shown.
Types of video or audio equipment include laptop computers, tape recorders, baby monitors, camcorders, and “nanny cams”. The reasons that sellers give is that they want to protect their property and valuables from theft or destruction, or that they just want to hear what the potential buyers are saying about their house. A person who chooses to use such equipment must be very careful not to violate State or Federal law.
In 1968, the Federal government passed the Omnibus Crime Control and Safe Streets Act (“Omnibus Act”). Title III of this act speaks to wire and electronic communications and the interception of oral communications. The purpose of this Act is to protect an individual’s right to privacy. Federal statute 18 USC § 2511 makes it unlawful for anyone to “intentionally intercept…any wire, oral, or electronic communication.” Notice how the statute says nothing about “recording.” That is because the statute prohibits the interception of oral communication whether it is recorded or not. This is a criminal statute, and a violation could result in a fine and up to 5 years in prison. There are some exceptions listed in the statute, but they mostly pertain to law enforcement. However, a person will not be in violation of this statute if State law allows them to hear an oral communication, when a party to the conversation has consented.
So, let’s take a look at what North Carolina law says. General Statutes §§ 15A-286, et al. make up the Electronic Surveillance Act and reference and contain many of the same provisions found in the Federal Omnibus Act. This is a criminal statute, a violation of which is a class H felony. North Carolina also allows for a person, whose communication was intercepted, to sue the violator and get $100 per day for the violation, punitive damages, litigation costs, and attorney’s fees. The statute only makes this a violation when one party to the communication has not consented.
Example 1: If you wanted to record a conversation between you and someone else, this generally would be allowed since you are a party to the communication and have consented to it being recorded. Even so, talk to your attorney before recording conversations.
Example 2: If your seller wanted to record a conversation between a potential buyer and their agent, this would not be allowed as the seller is not a party to that communication and the parties have not consented.
In 2002, the North Carolina Court of Appeals handed down a decision on the issues in Kroh v. Kroh. This was a case in which a married couple was separated and the wife decided to hide a video camera in the home to try and gather evidence for the divorce proceedings. The Court interpreted both the North Carolina and Federal laws discussed above and determined that the videotaping of the husband “did not violate the Electronic Surveillance Act unless such videotaping also included an audio recording”. Krohv.Kroh, 152 N.C. App. 147 (2002).
What does this all mean? These laws speak to oral or electronic communications and not video surveillance. Therefore, if you have a client who is adamant about placing a surveillance device in their home, advise them to ensure there is no audio turned on. They must also still be careful as to placement of the device (i.e. living room as opposed to bathroom) so as not to violate a person’s privacy. They should not use non-recording audio devices such as baby monitors or walkie-talkies to try to figure out what people are saying about their property. As mentioned above, the fact that the devices do not record anything is immaterial. Violations of these laws are criminal and could land you or your client in jail and facing a hefty civil penalty.
Finally, the Commission recommends not using any device in the home as a means of trying to gain information on potential buyers or their agents. Such an attempt to gain potentially confidential information about a buyer would most likely be considered inappropriate at best, and has the potential to result in criminal or civil liability. Should you have any questions regarding this, please call the Commission at 919-875-3700.
This article came from the May 2014-Vol45-1 edition of the bulletin.