Condo Media - June 2019 - 49

condominium unit and aimed at the exterior areas surrounding the condominium
or in the common area hallways. If the
doorbell camera only captures areas outside the condominium which are in the
public, there are no privacy implications
as one does not have privacy rights when
in a public place. The Massachusetts
Appeals Court has specifically stated that
one has no right to privacy from having
their picture taken in a public place.
In Cefalu v. Globe Newspaper Co., the
Massachusetts Appeals Court found
a person does not have a legal right to
exclude a newspaper from taking any
photograph of them in a public place.
The decision in Cefalu, makes it clear
that one has no privacy right to exclude
another from taking their photograph
in public. Following the decision in
Cefalu, a doorbell camera which takes
photographs or videos of public areas
is not an invasion of a person's privacy
rights as there is no reasonable right
to privacy when in a public place.
Installing a doorbell camera or allowing
a unit owner to install one, which records videos or images in public areas,
does not implicate any privacy rights
and can be permitted. However, boards
should be careful that these doorbell
cameras do not capture areas in another
unit or in nearby homes or other residences. As any recording that extends
into another person's home would be a
privacy violation and could subject the
condo association or the unit owner to
civil or potential criminal penalties.
CAN YOU HEAR ME?
The next issue a board must address
concerns a doorbell camera's ability
to capture audio recordings as well.
The Massachusetts Wiretapping Statue
("the Wiretapping Statute") criminalizes
the willful interception of any communication. According to the Wiretapping
Statute, an "interception" occurs when
one is able "to secretly hear, secretly
record, or aid another to secretly hear or
secretly record the contents of any wire
or oral communication through the use
of any intercepting device" without the
consent of "all parties to such communication." In Commonwealth v. Hyde, the

Massachusetts Supreme Judicial Court
found that the Wiretapping Statute does
not apply to open (or non-secret) recording or to video recording (without audio).
A doorbell camera's ability to record
audio makes things a little trickier for
condo boards and unit owners in Massachusetts. The Wiretapping Statute
specifically prohibits secret recordings
without the consent of all parties to the
communications. Accordingly, a nonsecret recording would arguably not be
a violation of the Wiretapping Statute.
However, the key is, what can an association do to make sure that any recordings
are not "secret." Options would be to post
signs, inform all unit owners, but then
questions remain as to whether or not a

and Unit 3 on the third floor. Each unit
additionally has a front and rear porch/
balcony of which the adjacent unit
owner has the exclusive use of. However,
the owners of Units 2 and 3 had an easement to travel over the Unit 1 exclusive
use area to enter the condominium.
The board allowed the owners of Units
2 and 3 to install doorbell cameras on the
front and rear walls of the condominium.
The cameras could view Unit 1's entire
exclusive use area, but the view did not
penetrate within Unit 1. The cameras
also had the ability to take audio recordings but this use was disabled by the unit
owners. The owner of Unit 1 brought
suit, claiming that the doorbell cameras
were a violation of the Wiretapping

Condo associations need to fully understand and consider
the privacy implications created by doorbell cameras before
installing them or allowing unit owners to install them.
non-resident or unit owner would have
notice of this recording. Any ambiguity
as to whether or not a recording was
secretive or done with the consent of all
parties to the communications puts the
association at risk of a claim of a violation
of the Wiretapping Statute.
Given the language of the Wiretapping Statute, the best practice for condo
boards in Massachusetts to adopt is to
allow the installation of doorbell cameras
with the capability of video recordings,
but to prohibit the use of any camera
(doorbell or otherwise) which also takes
audio recordings.
COURTS RULE
As a practical matter, I am presently
in the middle of a lawsuit where a unit
owner has claimed that her privacy
rights have been violated through the
use of a doorbell camera in violation of
the Wiretapping Statute. In Zhang v.
Graeff et al, Middlesex Superior Court,
Civil Action No. 1881CV03280, the
board of trustees authorized the installation of a doorbell camera in a threeunit condominium. This condominium
is a three-story building with Unit 1, on
the first floor, Unit 2 on the second floor

Statute, among other things, and requested that they be removed entirely.
A Superior Court judge ruled that the
cameras could remain and take videos
or images of the Unit 1 exclusive use area
and other public areas, so long as they
did not view into the unit and did not
take audio recordings. Essentially, the
judge found that the condominium could
maintain the status quo.
The judge's order in Zhang underscores the best approach for condo
boards in allowing the use of doorbell
cameras. They can be used, but they
should only be able to record video in
public areas and the ability to record
audio should be disabled. This method
is best to protect the safety and security
interests of the condominium and its
unit owners, while also protecting the
privacy rights of anyone within the
range of the cameras, and protect the
association from any claims of a violation of the Wiretapping Statute.
n NORMAN ORBAN, ESQ., IS AN
ASSOCIATE WITH THE LAW FIRM
MARCUS, ERRICO, EMMER &
BROOKS, P.C.

June 2019 CONDOMEDIA

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Condo Media - June 2019

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