Pages Menu
Categories Menu

Posted by on Jul 6, 2021 in Publications |

California Court of Appeals Weighs In On Right to Home Privacy in the Digital Age

California Court of Appeals Weighs In On Right to Home Privacy in the Digital Age

Whereas ten years ago the notion of having a private system of cameras and microphones installed around your house may have raised some eyebrows and given the appearance of being a conspiracy theorist, in 2021 it is no longer unusual to encounter a digital doorbell with a camera, such as a Ring, or networked security cameras as part of a larger smart home system from Apple, Amazon, or Google – the tech titans whose products have become as commonplace as seeing people walking around with shoes or wallets.

The California Court of Appeals’ recent decision in Sandra Mezger v. Randy Ralph Bick Jr., a celebrity case involving Kathy Griffin, provided a larger degree of clarity on the Court’s approach to balancing the right to privacy with the increasing acceptability and prevalence of this type of consumer-level surveillance equipment – which is, effectively, that there is no special privacy test that applies exclusively to this type of technology.

Rather, the Court found that the standard elements for evaluating a privacy claim were more than sufficient to address the facts of this case, wherein Kathy Griffin’s neighbor claimed that she and her husband had invaded their privacy by the use of a Nest security system made by Google. Those elements – the degree of intrusion, the circumstances surrounding the intrusion, the motives and objectives of the intrusion, the setting of the intrusion, and the expectation of privacy – were found to all weigh in favor of Kathy Griffin. The Court found that Ms. Griffin had a legitimate safety concern as a public figure and further found that all of the devices recorded video and audio that could be seen or heard from her property, such that none of the elements reached a high enough level of concern to constitute an actionable invasion of privacy.

A couple points of interest are raised by this case, however, by comments made by the Court in passing. First, the Court noted that even though the microphones on the Nest security system were more sensitive than the human ear, the impact on the plaintiff’s privacy was minimal but only because the content of plaintiff’s conversations was “still barely audible.” While unlikely to have tipped the scales, as electronic security systems continue to advance in sensitivity and quality, this does raise the question of whether a sufficiently sensitive security system could, by its sophistication, necessarily intrude on privacy by its mere existence – e.g., imagine a security system whose microphone system was so sensitive it could accurately record conversations through the wall of a house.

And second, the Court also noted that only “a small portion of the plaintiffs’ backyard could be seen,” which served as evidence that there was no intent to intrude into plaintiffs’ privacy as well as evidence of the minimal nature of the intrusion. One could imagine a more advanced security system that incorporated drones (which, though once the stuff of science fiction are now commonplace) that could be automatically launched to provide a better picture when certain security events are triggered. Similar to more sensitive microphones, this level of sophistication could be disallowed by California’s right to privacy given that a drone flying high enough to obtain a full, high resolution picture of your neighbor’s yard is much more intrusive than a camera that can barely see a portion of your neighbor’s yard, as was the case here.

In summary, while nothing in this recent decision should necessarily give pause to individuals utilizing camera and microphone technology in their home security systems, some thought may need to be given down the road as to whether future advances in home security and/or home surveillance equipment may, due to its sophistication, cross the threshold from helpful to intrusive in certain circumstances.