'Pandora's box' ruling by top New York court lets parent record child's interaction with 3rd party
In New York, only one party needs to consent to permit a private individual to record a conversation.
But such a recording is sometimes legal, and hence admissible in evidence, even if no one present during the interaction consents, the state’s top court held on Tuesday in a 4-3 decision.
In what one bar association leader described as a “Pandora’s box” ruling, the New York Court of Appeals majority said that a parent who is not present can sometimes make an audio or video recording of a child’s conversation with others, on the theory of vicarious consent, reports the Associated Press.
While such a recording does technically fall within the state-law definition of prohibited eavesdropping, “There is no basis in legislative history or precedent for concluding that the New York Legislature intended to subject a parent or guardian to criminal penalties for the act of recording his or her minor child’s conversation out of a genuine concern for the child’s best interests,” the court says in its written opinion (PDF).
However, whether the recording is legal depends on the facts and circumstances of each case, including the parent’s motive in making the recording and the age and maturity of the child.
The basic test for legality of the recording is that “the parent or guardian believe in good faith that it is necessary for the best interests of the child to make the recording, and that this belief be objectively reasonable,” explains the majority, which adopted the approach taken by the Cincinnati-based 6th U.S. Circuit Court of Appeals in its 1998 decision in Pollock v Pollock.
“The 6th Circuit noted that the vicarious consent ‘doctrine should not be interpreted as permitting parents to tape any conversation involving their child simply by invoking the magic words: “I was doing it in his/her best interest,” ’ but insisted that ‘there are situations, such as verbal, emotional, or sexual abuse by the other parent, that make such a doctrine necessary to protect the child from harm,’ ” the opinion continues.
As a child grows older, though, he or she will have more autonomy, the court notes. Hence, a significant factor in applying the test for vicarious consent is “whether the child is capable of formulating well-reasoned judgments, of his or her own, regarding best interests.”
At issue in the underlying criminal case was whether a 2008 recording made by a father, when the mother of his 5-year-old son inadvertently answered her cellphone and left it on, should be admitted against the mother’s boyfriend in a child-abuse case. He was charged and convicted, among other more serious counts, with endangering the welfare of a child, which was the only charge for which the recording was admissible, the opinion explains.
The recording, according to a dissenting opinion, included threats made by the boyfriend to the child, but no actual physical abuse. It is undisputed that the father did not provide the recording to authorities until months later, when a complaint made by the owners of the building, who lived below the boyfriend, resulted in the child-abuse case against the boyfriend and police questioning of the father as the case was developed.
A dissenting appellate opinion says state statutory law on eavesdropping contains no such vicarious consent provision, so under settled statutory interpretation principles any such exception should be carved out by state lawmakers. Hence, it says, the child-endangerment conviction should be reversed.
It appears likely that the appellate decision will govern civil as well as criminal matters, and vice chairman Eric Tepper of the Family Law Section of the New York State Bar Association anticipated that applying it in daily law practice may be problematic.
“From my point of view, and the point of view of attorneys who practice divorce and family law, this case does potentially open up a Pandora’s box,” he told the Associated Press. “Even though this is a criminal case, you might envision that in custody cases or in divorce cases, a parent might be tape recording a child’s communications with someone else.”
Related coverage:
Digital Media Law Project: “New York Recording Law”
