The tricky business of audio surveillance

Those inquiring want to know if it is “legal” to monitor or record audio. They point to places in the United States where audio monitoring is conducted along with video surveillance in convenience stores, fast food restaurants, cashier booths, customer service counters, etc.  

The audio surveillance legislation in the United States differs from that in Canada. Federally, the United States Code, Title 18, Section 2511, prohibits interception and disclosure of wire, oral or electronic communications. In Section 2510 of the Code, “oral communication” means “any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation, but such term does not include any electronic communication.”

Therefore, some alarm monitoring companies recommend the posting of specific decals, notices or signage at the entrances of buildings that are under audio surveillance. They argue that “a person cannot have an expectation of privacy if there are public signs posted indicating that the communication is being monitored.”

In Canada, our Criminal Code makes it illegal to wilfully (i.e., intentionally) intercept a private communication. Section 184(1) reads: “Every one who, by means of any electro-magnetic, acoustic, mechanical or other device, wilfully intercepts a private communication is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.”

There are saving provisions. Section 184(2) provides that subsection (1) does not apply to “a person who has the consent to intercept, express or implied, of the originator of the private communication or of the person intended by the originator thereof to receive it.”

In Canada, it is not illegal to monitor or record sound, only “private communications.”

If the originator has a reasonable expectation that his or her oral communication with the recipient will NOT be intercepted, then that oral communication is a private communication. However, it is not illegal to intercept a private communication if you have the consent, express or implied, of the person who originated the private communication or of his or her intended recipient.

Express consent is obvious where the person announces that he or she consents to having their voice monitored or recorded. Implied consent can be tricky. It must be inferred from the circumstances. For example, the person sees and reads the decal, notice or signage and continues to converse with someone else. Or the person is specifically informed that his or her conversations are being recorded or monitored and, notwithstanding, the person continues speaking to another.

Commonly, one of the two, or more, persons involved in the oral communication is an employee, agent or subcontractor of the individual, business, institution or organization that is conducting the audio surveillance. That employee/agent/subcontractor can expressly consent, in advance, to the interception of his or her oral communication with the customer, client, guest, intruder or member of the public by signing an employment contract or subcontracting agreement, or a waiver containing the appropriate consent clause(s).

The aforementioned situation would apply in the case of alarm monitoring companies that offer “two-way live voice communication” with operators at their central monitoring station. Once an alarm is triggered, the operators establish a live audio link with the monitored premises and then assess the emergency situation. In the case of an actual burglary or home invasion, the operators may even voice-threaten the intruder that the police have been notified!

Those intending to conduct audio surveillance should also be aware that federal and provincial privacy legislation (e.g., PIPEDA) may apply.  Monitoring oral communications and the resulting audio/video recordings fall within the definitions of “personal information” (i.e., “information about an identifiable individual”) and “record” (i.e., “sound recording, videotape”), respectively.

PIPEDA and its substantially similar provincial counterparts (e.g., the Privacy Acts of British Columbia, Alberta and Quebec) require consent to the collection, use and disclosure of personal information in the course of commercial activities. Without consent, those conducting audio surveillance are at risk of being named in a complaint to the Federal (or Provincial) Privacy Commissioner.

In addition, if information obtained through the monitoring or recording of private communications is disclosed to the media or “published” on the Internet, the originator or recipient may sue for invasion of privacy under provincial legislation or the common law.

So, should you “add audio” to video recording systems? My answer is “NO!”  

I strongly recommend that any video recording system sold or leased with audio recording capability include a letter from the seller/lessor to the buyer/lessee suggesting that the buyer/lessee obtain legal advice — from a lawyer familiar with audio surveillance law — before using that system to record audio. It is best if the buyer/lessee acknowledges receipt of said letter, by signing a copy and returning it to the seller/lessor.

Elliott Goldstein, B.A., J.D. is a Woodbridge, Ont.-based lawyer. elgold@rogers.com