Is Video Recording Your Neighbor Illegal?
In an era where technology is advancing at an unprecedented pace, the law often struggles to keep up. One area where this is particularly evident is the use of video surveillance, such as IP cameras, to monitor neighbors. While video recording your neighbor is not inherently illegal, it can give rise to legal disputes under nuisance or privacy laws. This blog post explores how courts address such issues, using the case of Elliott v. Cagatin-Porter, an unreported case from Division Two of the Washington State Court of Appeals, as an example, and compares it to older legal frameworks like spite fence statutes.
The Washington Court of Appeals recently addressed a contentious neighbor dispute in Elliott v. Cagatin-Porter. In this case, the Elliotts and the Porters, who owned adjacent properties, became embroiled in a series of legal battles. The Elliotts alleged that the Porters’ contractors had damaged their property and filed claims for waste, trespass, nuisance, and harassment. The Porters counterclaimed, alleging nuisance and harassment by the Elliotts. The Elliotts had harassed the Porters by staring at them, banging a gong, causing their dogs to bark at the Porters, pressure washing their fence while the Porters were enjoying their back yard, taking pictures of the Porters’ and their guests’ vehicle license plates, shining lights in the Porters’ windows, and using a drone to surveil the Porters, their guests and contractors.
After a bench trial, the court dismissed the Elliotts’ claims and ruled in favor of the Porters on their nuisance counterclaim. The court issued a permanent injunction against the Elliotts, prohibiting them from engaging in their behaviors that interfered with the Porters’ use of their property. Additionally, the court-imposed sanctions and attorney fees on the Elliotts for violating a temporary restraining order (TRO) during the litigation Elliott v. Cagatin-Porter.
It is important to note that the sanctions and fines in this case were not directly related to the use of surveillance or the other various means of harassing the Porters, but rather for the Elliotts’ violation of the TRO and making false statements to the court during the suit. This distinction highlights the challenges courts face in addressing disputes involving modern technology like video surveillance with existing Washington State laws.
The Law’s Struggle to Address Modern Technology
The use of video surveillance, such as IP cameras, to monitor neighbors raises significant privacy concerns. However, the law has been slow to regulate this new technology. In many jurisdictions, video recording is not illegal unless it involves trespass, harassment, or violates specific privacy laws. For example, California Civil Code addresses physical and constructive invasion of privacy, but it requires the intrusion to be offensive to a reasonable person and often involves additional elements like trespass or intent to capture private activities.
Courts have occasionally addressed video surveillance under nuisance or privacy torts. For instance, a North Carolina court found that installing a motion-activated camera to surveil a neighbor’s backyard during a dispute could constitute an invasion of privacy if the intrusion was highly offensive to a reasonable person and a Florida court recognized that repeated surveillance of a neighbor’s backyard could violate their reasonable expectation of privacy. (See Nichols v. Calhoun, NC Court of Appeals and Jackman v. Cebrink-Swartz, FL Court of Appeals)
Despite examples of courts making ad hoc rulings regarding surveillance and nuisance, there is no comprehensive legal framework specifically regulating the use of video surveillance technology in residential disputes. This gap in the law leaves many homeowners uncertain about their rights and remedies when faced with intrusive surveillance by a neighbor.
While video recording is not explicitly regulated, Washington has one of the most restrictive privacy laws in the nation when it comes to audio recording. Under RCW 9.73.030, it is unlawful to record a private conversation without the consent of all parties involved. The law defines “private” as communications intended to be confidential and not open to the public. Evidence obtained in violation of this statute is inadmissible in court, and violators may face civil or criminal penalties. There are limited exceptions to this rule, such as recording conversations that convey threats or involve emergencies, which may be recorded with the consent of just one party. However, the general rule remains that all parties must consent to the recording of private conversations.
A Comparison to Spite Fence Statutes
The legal treatment of video surveillance stands in stark contrast to older laws regulating physical structures, such as spite fences. Spite fence statutes, which exist in many states, prohibit the erection of fences or similar structures that are unnecessarily high and built with the intent to annoy or harm a neighbor. For example, Washington law (RCW 7.40.030) allows for injunctions to restrain the malicious erection of structures intended to spite or annoy neighbors.
These statutes reflect a recognition that physical structures can be used to harm or harass neighbors, and they provide clear remedies for such conduct. However, no equivalent statutory framework exists for modern technologies like inexpensive IP cameras, photo surveillance or drones which can be just as intrusive, if not more so, than a spite fence.
The Path Forward
As technology continues to evolve, the law must adapt to address new forms of intrusion and harassment. While courts have begun to apply traditional legal theories like nuisance to disputes involving video surveillance, there is a pressing need for legislative action to provide clear guidelines and protections for homeowners.
In the meantime, homeowners facing intrusive surveillance by a neighbor may consider pursuing claims under existing nuisance or privacy laws. They may also seek injunctive relief, as seen in Elliott v. Cagatin-Porter, to prevent further harassment or interference with their property rights.
The case of Elliott v. Cagatin-Porter underscores the challenges courts face in addressing disputes involving modern technology. While the sanctions in that case were tied to violations of a restraining order, the broader issue of video surveillance and other passive-aggressive harassment remains largely unregulated. By comparing this modern issue to the well-established legal framework for spite fences, it becomes clear that the law has yet to catch up with the realities of technological advancements. Until it does, homeowners must rely on traditional legal theories to protect their privacy and property rights.
To learn more please contact Beresford Booth at info@beresfordlaw.com or by phone at (425) 776-4100.