Personal Spy Gear: Is It Ethical? Is It Legal?

These days, if you want to watch over your house, your kids or your significant other, there's a whole world of high-tech security devices out there you can use, in forms you may not have even imagined.

There are tiny GPS data loggers you can slip into someone's car or backpack to learn where they're going. There are audio recorders the size of flash drives that can listen in and preserve the conversations of others nearby. And there are surveillance cams in a whole assortment of motion-activated disguises, including facial tissue dispensers, alarm clocks, outdoor home electrical boxes, bird feeders and even soft, furry teddy bears.

But while it's easy to find and buy surveillance devices, is it legal and/or ethical to use them? Is it okay if you use them to watch over strangers? Is it reasonable to use them to watch and hear family members and loved ones?

The answers can sometimes be murky.

"There are definitely legalities to consider," said Lee Tien, a senior staff attorney for the San Francisco-based non-profit privacy group Electronic Frontier Foundation. "Just because you can do something doesn't mean you should do it."

Who uses spy devices?

"The majority of these products are purchased for the safety of peoples' families or friends, or for when they are having work done in their homes and can't be there to watch," said Helen Bowser, co-owner of The Protection Pros in Morristown, Ind., which sells a full line of personal security devices online to everyone from suspicious spouses to worried parents. For example, Bowser said, many customers buy surveillance cameras to keep an eye on nannies who care for their children in their homes.

Bowen Scott, president of SpyGear4U in Kingsport, Tenn., said that among his biggest sellers in high-tech personal security equipment are small audio recorders that allow a user to record voices or other audio in another room. Also popular are devices that can detect if a user's phone or room is being bugged by listening devices.

Tim Westphal, a private investigator in Fraser, Mich., who also runs Spytek Detroit, a business selling personal security gear, said all kinds of people use these gadgets for many different reasons.

Parents of teenagers are buying and using GPS loggers to watch over how their new drivers are doing on the roads, particularly so they can monitor speeds and driving routes. A logger can be stealthily placed in a vehicle where it stores the GPS coordinates; later, it's removed by parents, who plug it into a computer to review the driving details.

"You can find out wherever they were and exactly what they were doing," Westphal said. "You can actually even take the GPS coordinates and plot it out on Google Maps."

The ethical questions

So it's now possible for anyone to spy on others. But is it right?

"Ethically, I think it's a personal decision," Helen Bowser said. "If a mother wants to check on her child, that's for her to decide. If someone wants to judge somebody for buying a camera or buying a voice recorder, they have to put themselves in the other person's shoes. If [your] child or other loved one was in that kind of position, what would you do? You know, you do what you have to do."

EFF attorney Tien said gadgets like these can be used ethically -- or not.

It's one thing when such tracking data is collected with your implied consent, such as when you sign up to use an EZ-Pass transponder in your vehicle to automatically pay tolls on highways and bridges across the eastern U.S., Tien said. "But once you start thinking about where you are in your everyday life and [how such data reveals where you are and] when you are there, it's actually a pretty revealing thing."

If a parent wants to use a GPS device to ensure their teen driver's safety and tells the teen that the device is being used in the vehicle, then that can "help keep an honest person honest," Tien said. But if a user wants to track another person for another reason in a secret way, then that's perhaps an unethical use. "It's still a control thing to do. It's certainly not something I'd do to my kids. We have a trusting relationship."

He added that the ethical issues are much different if you do that to someone without their consent, especially when it occurs on private property versus in a public place. "If it's in your own home, a security system, and you're the one who has access to it and others don't, you are in control." To be ethical about it, you should let visitors know that they are subject to being videotaped or monitored while in your home.

How safe is the info?

A related issue that few parents think about, Tien said, is that if you use a GPS device to track your child, that data -- their whereabouts and other information -- is now available to whatever company collects it. That could put your children at risk from unscrupulous companies. "You really want to think about how long do [the GPS vendors and their partners] keep the data and who else can see it," he said.

If a company collected this type of data about a celebrity, an unscrupulous worker could look up data and release the information for monetary gain to the media, Tien added. "That's human nature; no one should be surprised by it. But we've got to realize when we're creating this kind of data that there are people who are going to be interested in looking at it. And there are others who can gain access illegally."

The key is to ask lots of questions before buying and using such devices, such as whether the tracking information is stored, where it is stored, who can access and view it, and whether any third parties ever have access to the information, Tien said.

The legal questions

Behnam Dayanim, an attorney with Los Angeles-based Paul, Hastings, Janofsky & Walker LLP, said the legal lines on the use of such devices can be blurry.

"The acceptability or permissibility of these techniques depends on several factors, including where they were activated, who is undertaking the activity and what notice is provided to the subject of the activation," Dayanim said. "There are different degrees of privacy interests. The greatest privacy interest is in your own home."

In other words, homeowners could claim they are permitted to collect information about others who are inside their homes. But if someone collects information about you in your home without your permission, that would be an invasion of your privacy, he said.

A sampling of security gear

There's an ocean of high-tech personal security devices out there. These are only a few:

Hidden cameras

GPS trackers

Audio recorders (with automatic voice activation)

"You [should] talk to somebody about the law" when they are making a purchase, SpyGear4U's Scott said. "By law people aren't allowed to record a phone conversation if the other person isn't aware of it. We have the laws posted on our site, but we can't be the police."

He admitted that there are a lot of illegal products available on the Internet. "I don't carry them," Scott said, including devices sold in Europe and elsewhere that allow someone to capture others' cell phone calls on their own phones in real time so they can listen in. "It's not something I want to sell," Scott said. "I don't want a knock on my door six months from now" from the police.

"I think your legal position is much stronger [if you use this type of equipment] in your own home," Dayanim said. "I don't think the law is completely settled on nanny cams . . . but I think there are certainly strong consensuses to a claim."

If you do record a guest's actions in your home, you may be able to defend a legal challenge. "I don't think there [are] any state laws" regulating this, he said. But all 50 states do have laws regulating audio recording of telephone conversations, so it could be argued that the situations are similar. Twelve states -- California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania and Washington - legally allow tape recording of telephone conversations only when they are recorded with the consent of both parties, according to The Reporters Committee for Freedom of the Press. The other 38 states allow telephone recording with the consent of only one of the parties to the call.

Protection Pros notes on its Web site that some items may or may not be legal for use in all states across the U.S. and advises buyers to check with their local laws. "Most people don't ask," Bowser said.

To best protect yourself from successful legal actions by others if you are considering using such devices, Dayanim said, you need to let people know that they could be filmed or recorded while in your home. "Giving them notice solves a lot of problems."

Across the U.S., the general rule of law is that an individual has no right to privacy in public places. "If you're in public, you're in public," Dayanim said, and not protected as you would be in your own home.

But even then there is some flexibility for legal action. "You could have different claims depending on how someone used the information they collected in public," he said. "If someone took a photograph of you passing a gentleman's club and used it to portray that you went into the club, you could have the right to legal action because you may have just been walking by."

You wouldn't legally have the right to do surveillance or listen in to private conversations involving another adult, such as a spouse or lover, outside your home, but such actions would likely be permissible if you performed them while looking into the activities of your own child, if he or she is under 18, he said. As a parent, "you have the right to his or her personal information."

The same wouldn't be true if you were trying to check into someone else's child, he said. "There would be a variety of laws that would protect another child's privacy ... if you were trying to access their personal information."

What if you collect information about someone else using a GPS data logger so you can see where they've traveled and when they were in various locations? "I don't think that's a settled area yet," he said. "On one hand, your public movements are not private. You're driving around. On other hand, there could be a trespassing or other kind of [lawsuit]."

Keeping up with the technology

Scott Burns, the executive director of the National District Attorneys Association in Alexandria, Va., said new kinds of personal technology devices are sprouting so quickly that they're creating new challenges for state and federal courts.

"As a broad observation, I would say that the courts have not kept up with the technology and in many states the laws have not kept up with the technology," said Burns, who served as a district attorney for 16 years in Iron County, Utah, and as director of the U.S. Office of National Drug Control Policy for seven years. "I predict that we will see more litigation and legislation regarding the technology."

What that means, he said, is that there is still much interpretation to be developed about these kinds of equipment, how they are used and whom they are used by. "In my conversations with DAs and law enforcement officials across the country, each case would be analyzed on the specific facts, the equipment used and the relationships between the parties," Burns said. Much depends on whether there was consent for the use of the devices and if they were used in a home, business or public place, he said, and added that it's probably reasonable for someone to use such devices inside a property that they own, without the consent of others.

"I don't know if anyone would have a great case against you if you were putting a tracking device on your eight-year-old to be sure they were safely getting home from school," Burns said, but it wouldn't likely be legitimate if you did the same thing to one of their friends. "It's probably not a problem putting a GPS tracker in a vehicle that you own, even if it's used by a spouse or your child. But you may have a [legal] problem putting a tracking device on the vehicle of someone else," such as a boyfriend of girlfriend.

"A lot of that is premised on the underlying Fourth Amendment protection" of the U.S. Constitution, which provides a reasonable expectation of privacy, Burns said.

So how do you know when you're using security technology in an appropriate way?

"I am reminded of the U.S. Supreme Court justice [Potter Stewart] who once said that he didn't know how to define pornography, but he knew it when he saw it," Burns said. It's similar with personal security technology devices today, he added. "With respect to the use of this technology in the private sector, there are times when it is appropriate with family members. But there are times when it clearly crosses the line."


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