Pennsylvania’s Wiretap Act
In Commonwealth of Pennsylvania v. Beth Ann Mason, No. 69 MAP 2019, the Supreme Court determined that a nanny caring for children did not have a reasonable expectation of privacy in the children’s bedroom; therefore, the oral communications derived from a surveillance camera are admissible pursuant to the Wiretapping and Electronic Surveillance Act (“Wiretap Act”), 18 Pa.C.S. §§ 5701-5782.
Eric Valle (“Valle”) hired Beth Ann Mason (“Mason”) to act as a nanny for his children and, in doing so, prohibited her from using corporal punishment on the children. Approximately one month after Mason commenced working for Valle, Valle’s three-year-old son reported that Mason was “thumbing” him in the face and hitting his twin two-year-old sisters. Around that same time, Valle observed that one of the twins had a “busted lip” and that his son occasionally had marks on his face. Valle asked Mason about his daughter’s injured lip, and Mason initially could not offer an explanation. The following day, however, she suggested that the child may have injured herself while attempting to climb out of her playpen. Valle was skeptical of this possibility given that his daughter suffered no other injuries that would indicate that she fell from her playpen. Of further note, Mason told Valle that she did not know why his son would claim that she was “thumbing” his face or that she was striking the twins. Additionally, after Mason began to care for the children, Valle noticed a shift in their behavior. For example, if Valle raised his voice, his daughter would cover her face, a behavior that she did not exhibit prior to Mason’s employment with the family. Indeed, it appeared to Valle that his children were afraid of Mason. Approximately two months after Valle’s son reported these incidents to him and Valle confronted Mason, Valle placed a camera in his children’s bedroom. The camera captured sound and video of its surroundings. Valle purposely did not inform Mason of the presence of the camera. At some point, the camera recorded Mason yelling at one child before forcefully placing her into a crib located inside of the bedroom where the camera was recording. Audio portions of the recording also suggest that Mason may have struck the child several times. Valle gave the recording to the police.
The Commonwealth subsequently charged Mason with aggravated assault, simple assault and endangering the welfare of children. Prior to trial, Mason filed a motion to suppress the audio and video recordings, arguing that the recordings violated Section 5703 of the Wiretap Act, 18 Pa.C.S. § 5703, and, thus, would be inadmissible at Mason’s trial because Valle illegally intercepted her electronic and oral communications. Mason explained that, while the Wiretap Act contains a number of exceptions that allow a party to record secretly another person, none of those exceptions applied to the recordings at issue in this case.
The trial court granted Mason’s motion to suppress and excluded from trial both the audio and video recordings captured by the nanny cam. On appeal, the Superior Court determined that, based upon Mason’s status as an employee and regular guest in Valle’s home, “she had a justified expectation that she would not be audio recorded,” but determined that the video evidence was admissible.
On appeal to the Supreme Court, the Court acknowledged that the Wiretap Act generally prohibits the interception, disclosure or use of any wire, electronic or oral communication. Commonwealth v. Byrd, 235 A.3d 311, 319 (Pa. 2020) “Any oral communication uttered by a person possessing an expectation that such communication is not subject to interception under circumstances justifying such expectation.” 18 Pa.C.S. § 5702. To establish a violation of the Wiretap Act, the Court determined a claimant must demonstrate: (1) that he engaged in a communication; (2) that he possessed an expectation that the communication would not be intercepted; (3) that his expectation was justifiable under the circumstances; and (4) that the defendant attempted to, or successfully intercepted the communication, or encouraged another to do so. Thus, Mason carried the burden of presenting evidence to establish that, under the circumstances of this case, she possessed a justifiable expectation that the oral communications, which were captured by the nanny cam in the Valle children’s bedroom, would not be intercepted.
The only evidence Mason submitted at the suppression hearing was her testimony recounting her version of the conversation that took place between her and Valle regarding the lip injury suffered by one of Valle’s daughters. Accordingly, the Court determined that Mason’s testimony was insufficient to demonstrate that she had a justifiable expectation that her oral communications would not be intercepted under the circumstances. Further, absent demonstrable circumstances to the contrary, the Court believed it was objectively reasonable to conclude that persons in Mason’s position do not have a justifiable expectation that their oral communications will not be subject to interception while they are in a child’s bedroom. Notably, the use of recording devices in homes as a means for parents to monitor people hired to care for their children have become so commonplace that these devices are often referred to as "nanny cams." That is to say that the expectation that a childcare worker is going to be recorded in their employer’s home is so ubiquitous in our society that we have a name for it.