Is an audio recording of an unknowing babysitter a violation of the Wiretap Act?

Commonwealth v. Mason, 2019 WL 1084210 (Pa. Super. 2019) (unreported), allocatur granted Sept. 10, 2019, appeal docket 69 MAP 2019

The Pennsylvania Supreme Court granted allocatur to consider whether an audio recording of an unknowing babysitter, who was an employee and regular guest in the home, is a violation of the Wiretapping and Electronic Surveillance Control Act (the “Wiretap Act”).

Beth Ann Mason (“Mason”), was hired as a nanny for six children. After the father of the children was informed by the children that Mason was striking them, found physical signs to corroborate their stories, and noticed they were uncomfortable around Mason, the father installed a hidden recording device in the children’s bedroom without informing Mason. When the device eventually captured audio and video footage of Mason yelling and physically striking one of the children, the father turned over the recording of the incident to the police. The trial court found that an audio and video recording of Mason violated the Wiretap Act. The Superior Court affirmed the finding that the audio portion of the recording was subject to the Wiretap Act and therefore, inadmissible but reversed the finding that the video portion of the recording was inadmissible. First, the Superior Court considered the application of the Wiretap Act and what protections it provided to Mason, reasoning that:

Assuming that Mason had a justified expectation that she was speaking privately (which we analyze in more detail below), her verbal utterances are considered “oral communications” which were “intercepted” by [the father’s] device. Without judicial authorization or an applicable exception, the communications are subject to exclusion under the Wiretap Act. [Citation omitted]. There are also some non-verbal sounds on the recording which may inform a fact-finder of the excluded words’ substance, purport or meaning. These include the purported sounds of Mason shoving or hitting a child…. However, the Wiretap Act provides that if an oral communication is rendered inadmissible, then so is the “evidence derived therefrom.” [Citation omitted]. Also rendered inadmissible are the “contents” of such a communication, which includes “any information concerning the substance, purport, or meaning of that communication.” [Citation omitted]. Because the verbal and non-verbal sounds which the device captured from Mason are protected by the Wiretap Act, we find no basis in the record or in the applicable law to disturb the order excluding all of the audio content in the subject recording.

Slip Op. at 6-7. Further, the Superior Court found that Mason, an employee and regular guest in the home, had a reasonable expectation of privacy, explaining:

Based on Mason’s status as an employee and regular guest in [the father’s] home, she had a justified expectation of privacy that she would not be audio recorded. Her personal conversations had nothing to do with child care and there was no reason for Mason to suspect that [the father] would intercept them. Mason’s communications and any non-verbal sounds she made or caused in [the father’s] home are within the purview of the Wiretap Act.

Slip Op. at 9-10.

The Supreme Court granted allocatur, limited to the following issues:

(1) Whether a babysitter has a reasonable expectation of privacy in the bedroom of a child she is caring for?

(2) Whether the sounds resulting from a child being forcibly thrown into a crib and being beaten by [Mason] constitute “oral communications” or “evidence derived therefrom” under the Pennsylvania wiretap statute?

Allocatur grants present an excellent opportunity for your group or association to advance your legal and policy goals by filing an amicus brief. Participating as an amicus has proven to be an effective method of advising and influencing courts and often can involve far fewer resources than traditional lobbying.

If you are interested or would like more information, contact Kevin McKeon or Dennis Whitaker.