Watching You, Watching Me

By Melissa Bauman Ward, Esq. 

When it comes to surveillance cameras – both for associations and members – policy considerations should be examined carefully.

SURVEILLANCE CAMERA SYSTEMS FOR ASSOCIATIONS

The presence of surveillance cameras in homeowners associations is not uncommon. Cameras are used for everything from crime deterrence to creating evidence of crimes (particularly theft and destruction of property) to figuring out who is leaving furniture by the dumpsters or not cleaning up after their dog. The predominant issue revolves around a member/resident’s right to privacy.

COMMON AREA PLACEMENT

Surveillance cameras typically point toward the common area, including the sidewalks, parking areas, driveway areas, landscaped areas, trash enclosures, and other recreational areas. Because anyone walking on the common area past the cameras will be caught on tape, so to speak, and will have their likenesses recorded, there is concern that their privacy will be violated as a result. The question boils down to whether an association has a duty to protect residents’ and guests’ right of privacy with regard to recording of their likeness, voice, and common area activities.

PRIVACY CONSIDERATIONS

The basic principle is that people have no reasonable expectation of privacy while on public streets or in public areas. The streets, sidewalks, walkways, landscaped areas, and recreational amenities in associations are "public," not in the sense of being open to the entire world, but in the sense of being open and accessible to all members, residents, and often guests of the community. Therefore, residents, guests, and invitees have no reasonable basis to complain that their privacy is being violated by the installation of surveillance cameras. In many respects, these areas of associations are similar to parking areas and stores at shopping centers which are frequently subject to video surveillance.

There are some public areas in which people do have reasonable expectations of privacy. Bathrooms, changing areas, and the inside of residences are all examples of areas in which people have a reasonable expectation of privacy. Surveillance cameras installed and operated by the association should never record these areas.

Additionally, while there is no privacy consideration for recording video of outdoor public areas, there are some considerations with regard to recording conversations. In California, both parties to a conversation must consent to its recordation. Therefore, care should be taken when making audio recordings on common areas to ensure that private conversations are not inadvertently recorded.

SIGNAGE AND NOTICE

There is no law or other requirement that signs be posted or other notice be given in order to record video of outdoor and other public areas. However, some associations believe that posting signs indicating that cameras are in place can serve as a deterrent to criminal activity. Additionally, signage can serve as a means of obtaining implicit consent to being recorded because once a person knows they are being recorded, they should no longer have an expectation of privacy in that area.

USE OF FOOTAGE

Care should be taken to make sure that access to surveillance camera footage is kept private. Directors and managers should only review footage if necessary and in response to particular incidents. Camera footage is not for entertainment and should not be distributed or published outside the board. Camera footage should generally be provided to third parties only in response to a subpoena. If you have questions about whether or not footage should be released, consult with your legal counsel.

One exception to the general rule regarding release of footage involves cooperating with law enforcement with regard to investigation of crimes. Many associations find that cooperating with law enforcement in this way is helpful, appropriate, and makes their communities safer. Other communities prefer to release footage – even to law enforcement – only in response to a subpoena. Developing a policy which addresses the issues of access and release of footage can be helpful to boards and managers because this will establish a procedure for handling requests for footage. Again, if you have questions about whether or not footage should be released, consult with your legal counsel.

SURVEILLANCE CAMERA SYSTEMS FOR MEMBERS

PLACEMENT AND RIGHT TO RECORD

Members have a right to place cameras inside their separate interests and record there as they wish. Associations are not involved in such decisions with regard to recordings. However, when members wish to place cameras on the exterior of buildings (or by the front door of units in buildings with interior hallways), extra care must be taken to ensure that places where there is a reasonable expectation of privacy – e.g., the interior of other residences, bathrooms, and changing areas – are not recorded.

PRIVACY CONSIDERATIONS – THE CASE OF KATHY GRIFFIN AND THE NOISY NEIGHBOR

With the easy availability and decreasing price of sophisticated home surveillance systems – ranging from a doorbell with video and two-way audio capability to a full-blown security system featuring video and audio surveillance everywhere on a lot – comes the concern that one neighbor’s security is another neighbor’s privacy invasion. This was the case in the recent matter of Metzger v. Rick (2021) 66 Cal.App.5th 76. In this case, the Metzgers,1 enthusiastic partiers, sued comedian Kathy Griffin and her boyfriend Randy Rick for invasion of privacy resulting from recordings made (and released publicly) by Griffin and Rick’s surveillance cameras, which ringed Griffin and Rick’s property.2 While the system had been installed for safety and security reasons, the Metzgers’ loud and raucous parties garnered the ire of Griffin and Rick, who used the video and audio recordings to complain about the noise to local law enforcement and the press.³

The Metzgers complained that the video (a very small portion of which showed the back corner of the Metzgers’ back yard) and audio (which mostly featured sounds of their loud parties, but also some confrontations and shouting by Mr. Metzger directed at Ms. Griffin) violated their right to privacy. The Court of Appeal disagreed, concluding that any privacy invasion was insubstantial and incidental. This common-sense decision is welcome. After all, if you’re going to shout and make so much noise that everyone in the neighborhood can hear it, you shouldn’t be able to complain when someone records it. However, going forward, we note that as surveillance systems get more sophisticated, sensitive, and common-place, residents will need to take extra care in setting up their systems to ensure that they do not unintentionally record audio and video of their neighbors’ separate interests, and thereby record private matters which are protected pursuant to California’s constitutional right of privacy and other statutes.

ARCHITECTURAL APPLICATIONS

Finally, we note that architectural applications may be required for installation of surveillance cameras, especially in condominiums where the building exteriors are common area. Architectural committees and boards should take care to make privacy considerations, and in particular the scope of recording, a condition of approval for these systems. Approval is made much easier if the requirements for installation of surveillance cameras are stated clearly in the rules, including acceptable locations and limitations on where and what cameras can record.

Associations, and also residents, may use surveillance cameras to record activities occurring on "public" common areas because there is no reasonable expectation of privacy for activities occurring in these areas. However, care must be taken, particularly with regard to recording devices with an audio component, because as the devices get more sophisticated and sensitive, the possibility of unintentionally recording private conversations or video or previously out of reach areas becomes more likely. For now, however, as long as associations are mindful of these issues and insist on preservation of privacy where there is a reasonable expectation of such as a condition of approval of installation of recording devices, the risk of inadvertent invasion of privacy should be minimal. Developing a policy outlining these principles can help architectural committees with surveillance system applications as well as reassure residents that their privacy is being protected appropriately.

Melissa Bauman Ward is managing partner of the San Francisco office, ADAMS | STIRLING. The firm represents CIDs throughout the state and is well known for its popular website Davis-Stirling.com.

1 Mr. Metzger was CEO of KB Homes.

2 Griffin was concerned for her safety due to a stalker who had threatened her and had installed a large security system which covered the entire perimeter of her home and lot.

3 Kathy Griffin also used the recordings in her comedy act and released them to TMZ at one point.