Parental Eavesdropping: An Exception for “Best Interests”
Information Privacy Blog Post
By: Viviana Puchi
On April 5, 2016, the New York Court of Appeals ruled that parents can legally eavesdrop on a minor child’s phone conversations and record them if they “reasonably believe it would be in the child’s best interest.”[1] This creates an exception to existing New York law prohibiting the recording of conversations without the consent of at least one person on a call. The court adopted the doctrine of vicarious consent, drawing from the federal Wiretap Act, which allows for an exception for the interception of a communication where one of the parties has given prior consent.[2] The court looked to other state and federal courts that have held that a parent or guardian of a minor child can give vicarious consent on behalf of the child to the recording of conversations to which the child is a party, in the good faith protection of the child’s best interests. The court weighed the competing interests at stake and decided that children’s best interests and parents’ duties to protect their children outweighed the invasion of children’s privacy in this context. With this decision, New York joins about a dozen other states that have also recognized vicarious consent.
The eavesdropper in this case was the biological father of a five-year-old boy, who was attempting to contact the boy’s mother. After several unsuccessful phone calls, his call was finally answered but no one spoke to him. He could, however, overhear a conversation during which the boy’s mother and her boyfriend yelled at the child and mentioned beating him while he could be heard crying. The father, claiming concern about his son’s safety, recorded the conversation using the “voice memo” function on his cell phone. Several months later, the child was removed from the mother’s home after a severe beating, and he went to live with his father, who then notified the police about the recorded conversation he had. He did not incur liability for his eavesdropping, as the court ruled that his situation fell under the vicarious consent doctrine.
In explaining the elements of vicarious consent in this context, the court stressed the importance of a “good faith, objectively reasonable” basis to believe that a child’s best interests were at stake, noting specific circumstances such as suspicions of abuse. Mere curiosity about a child’s conversations will not suffice. It also stated that, when analyzing such cases, courts must consider the age and maturity of the child, though a specific age was not listed. Instead, the age and maturity question should turn on “whether the child is capable of formulating well-reasoned judgments of his or her own.” Though seeking to protect children’s best interests, opening up this new exception may create problems going forward, where it may be difficult to determine both good faith in protecting best interests and a child’s maturity level. In this particular case, the facts already raised questions about good faith, where the father did not notify authorities or share the recording until several months later. This raises questions about how carefully courts will examine good faith in the privacy context going forward.
Additionally, the court specified in its holding that a parent can create an audio or video recording under this vicarious consent doctrine, which may create further questions about privacy invasion going forward. One can imagine a future situation in which a parent, with the assistance of surveillance software, claims to suspect that their child is speaking with an abuser and records the child’s video chats, gaining even more private information than audio might provide and raising questions about the distinction between audio and video in privacy law.
This decision provides another example of ways in which surveillance can be excused. It highlights the difficulty of neatly carving out exceptions to privacy law that would not create loopholes subject to misuse or exploitation. As the dissent notes, it is also questionable whether the creation of such exceptions should be done by the courts or left to the legislature. Further, the case hints at the problem of anticipating future developments in technology that may alter our existing ideas about surveillance, an ongoing issue in information privacy law.
[1] See People v. Badalamenti, No. 71, 2016 WL 1306683 (N.Y. Apr. 5, 2016).
[2] 18 U.S.C. §2511(2)(d).