New York High Court: Parents Can Provide Vicarious Consent to Recordings of Children

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April 8, 2016

vicarious-consentThis Tuesday, the New York Court of Appeals held that parents and legal guardians can provide vicarious consent for the recording of their children’s conversations.

Why should recording parties be concerned about wiretapping laws?

The Recording

In May 2008, a father called his ex-wife while their son was with the mother and her boyfriend.  The telephone call went through without the mother and boyfriend’s knowledge, and the father was able to hear the adults yelling at and threatening to beat the child.  The father recorded these interactions using the voice memo function on his mobile phone.

That October, the boyfriend was arrested following a similar domestic abuse incident with the same child.  He was charged with numerous counts of assault, criminal possession of a weapon and endangering the welfare of a child.

Procedural History

The father provided a copy of the May 2008 recording to the police.  At trial, over the boyfriend’s objections, the prosecution introduced the recording as evidence for its charge of endangering the welfare of a child.  Ultimately, the boyfriend was convicted and sentenced to seven years’ imprisonment, to be followed by three years of post-release supervision.

On appeal, the boyfriend argued that the father’s recording amounted to eavesdropping in violation of New York State’s wiretapping law because no party to the conversation consented to the recording.  As such, he argued, the evidence was inadmissible, and the charge on accessorial liability was given in error.  The Appellate Division affirmed the trial court’s judgment, and the boyfriend appealed the decision to New York State’s high court.

Parent’s Vicarious Consent for Recorded Child

As the Court of Appeals noted this Tuesday, due to legal privacy concerns, eavesdropping (via wiretapping or otherwise) is a felony in New York State.  Although the father’s phone call did not constitute wiretapping because he was the “sender” of the communication, the boyfriend claimed that the father’s recording amounted to the crime of “mechanical overhearing of a conversation,” and that the recording was consequently inadmissible.

Conceding that the father’s actions matched the statutory elements of eavesdropping, the Court nonetheless affirmed the decision, concluding that the father gave consent to the recording on behalf of his child.  “[W]e hold that if a parent or guardian has a good faith, objectively reasonable basis to believe that it is necessary, in order to serve the best interests of his or her minor child, to create an audio or video recording of a conversation to which the child is a party, the parent or guardian may vicariously consent on behalf of the child to the recording.”

When determining whether such a recording is admissible as evidence, the Court instructed trial courts to consider several factors, including:

  • the parent/guardian’s motive or purpose for making the recording;
  • the necessity of the recording to serve the child’s best interests; and
  • the child’s age, maturity, and ability to formulate well-reasoned judgments of his or her own regarding best interests.

Call to Action

Although the recording party in the above-mentioned case ultimately prevailed under a narrowly tailored exception for parental vicarious consent, state and federal governments and regulatory agencies can, and often do, take action against individuals and entities that fail to ensure that their privacy practices are compliant with existing law.  As such, it is essential that such parties speak with an experienced privacy attorney before engaging in the audio or video recording of conversations involving third parties.

If you are interested in learning more about this topic, or need to review your privacy practices, please e-mail us at info@kleinmoynihan.com, or call us at (212) 246-0900.

The material contained herein is provided for informational purposes only and is not legal advice, nor is it a substitute for obtaining legal advice from an attorney.  Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney.

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