Should Your Condo Association Allow Ring Doorbell Cameras?
For better or for worse, we live in a society where security cameras are everywhere. With the rise of technology companies such as Amazon and Google, security cameras are now available to the average consumers. For under $200.00, anyone can now buy a doorbell camera that can record high-definition video (day or night) and audio with noise cancellation. Coming from someone with a doorbell camera, they can be very useful to talk with a delivery person while out of the house, keep an eye on the dog in the front yard, and monitor the comings-and-goings of cars in the driveway. For all the useful aspects of a doorbell camera, there may be potential negative aspects as well, such as recording a portion of a neighbor’s property and everything that happens on their property. This article examines the concerns that a condominium association should be mindful of when considering the unintended consequences of doorbell cameras within a condominium.
Modification Requests
Under Section 47(1) of the Michigan Condominium Act, MCL 559.147(1), “a co-owner shall not do anything which would change the exterior appearance of a condominium unit or of any other portion of the condominium project except to the extent and subject to the conditions as the condominium documents may specify.” The master deed and bylaws for most attached condominiums allow a co-owner to modify the exterior appearance of a unit after obtaining the condominium association’s written approval. For site condominiums, however, the master deed and bylaws may not require the condominium association’s approval for a co-owner to modify the exterior appearance of the dwelling. Some condominium associations may not want to allow co-owners to have doorbell cameras and prohibit co-owner’s from installing one on their unit. In order to prohibit doorbell cameras, through, the master deed and bylaws may need to be amended.
Doorbell cameras are installed on the exterior perimeter wall of a unit, typically near the unit’s entry door in place of a traditional doorbell. Whether the co-owner of the unit will be replacing an existing doorbell with a doorbell camera or installing a new doorbell camera, such installation modifies the exterior appearance of a unit. Accordingly, and to the extent required by the master deed and bylaws, the co-owner will likely need the condominium association’s written approval in order to install the doorbell.
The following discussions are topics that a condominium association should consider when determining whether to approve or deny a co-owner’s request to install a doorbell camera.
Invasion of Privacy
The co-owners of units that are nearby or adjacent to the unit of a co-owner who has installed a doorbell camera may be concerned that the doorbell camera intrudes on their privacy. Since 1881, Michigan has recognized the common-law tort of invasion of privacy. Dalley v Dykema Gossett, 287 Mich App 296, 306; 788 NW2d 679 (2010), citing De May v Roberts, 46 Mich 160; 9 NW 146 (1881). There are four separate theories under which a claim of invasion of privacy can be established:
(1) the intrusion upon another’s seclusion or solitude, or into another’s private affairs; (2) a public disclosure of private facts about the individual; (3) publicity that places someone in a false light in the public eye; and (4) the appropriation of another’s likeness for the defendant’s advantage.
Lewis v LeGrow, 258 Mich App 175, 193; 670 NW2d 675 (2003).
Intrusion upon seclusion is likely to be the theory of invasion of privacy that most people think of in relation to a doorbell camera and invasion of privacy. To establish a claim of intrusion upon seclusion, there following elements must be established:
(1) the existence of a secret and private subject matter; (2) a right possessed by the plaintiff to keep that subject matter private; and (3) the obtaining of information about that subject matter through some method objectionable to a reasonable man.
Dalley, 287 Mich App at 306 (quotation marks and citation omitted).
Although Michigan courts have cautioned against conflating a person’s reasonable expectation of privacy in criminal matters with an invasion of privacy in civil tort matters, Doe v Mills, 212 Mich App 73, 85-86; 536 NW2d 824 (1995) (“Courts from this state have likewise recognized that the scope of privacy under the common law is not coextensive with a constitutional right to privacy.”), the two concepts are similar in that they both ask whether the intrusion, e.g., being recorded through a doorbell camera, intruded upon a private subject matter in a way that would be objectionable to a reasonable person.
In reviewing a co-owner’s request to install a doorbell camera, the condominium association should consider the doorbell camera’s field of view, specifically whether the camera could potentially see into another co-owner’s unit. Although a doorbell camera that can view into another condominium unit’s window alone may not necessarily give rise to a claim of invasion of privacy, see Saldana v Kelsey-Hayes Co, 178 Mich App 230, 234; 443 NW2d 382 (1989) (stating that peering through an open window may not be objectionable to a reasonable person), a condominium association should still investigate whether a doorbell camera could record what is happening inside another co-owner’s unit.
Wiretapping
In addition to concerns about invading another co-owner’s privacy, doorbell cameras may implicate Section 539c of the Michigan Penal Code, which states:
Any person who is present or who is not present during a private conversation and who wilfully uses any device to eavesdrop upon the conversation without the consent of all parties thereto, or who knowingly aids, employs or procures another person to do the same in violation of this section, is guilty of a felony punishable by imprisonment in a state prison for not more than 2 years or by a fine of not more than $2,000.00, or both.
Section 539d of the Michigan Penal Code is also relevant, which states in part:
(1) Except as otherwise provided in this section, a person shall not do either of the following:
(a) Install, place, or use in any private place, without the consent of the person or persons entitled to privacy in that place, any device for observing, recording, transmitting, photographing, or eavesdropping upon the sounds or events in that place.
(b) Distribute, disseminate, or transmit for access by any other person a recording, photograph, or visual image the person knows or has reason to know was obtained in violation of this section.
“Eavesdrop” means in part “to overhear, record, amplify or transmit any part of the private discourse of others without the permission of all persons engaged in the discourse.” MCL 750.539a(2). A “private place” means “a place where one may reasonably expect to be safe from casual or hostile intrusion or surveillance but does not include a place to which the public or substantial group of the public has access.” MCL 750.539a(1). “Thus, ‘eavesdropping’ is limited to overhearing, recording, amplifying, or transmitting the private, oral, or written communication of others without the permission of all persons engaged in the communication.” Lewis, 258 Mich App at 185.
States generally fall into one of two categories in relation to the consent necessary to avoid liability under wiretapping laws: one-party consent or all-party consent. As the names imply, liability for wiretapping may be avoided if one party to the conversation consents to being recorded in a one-party consent state while all parties to the conversation must consent to being recorded in an all-party consent state. In Sullivan v Gray, 117 Mich App 476, 481; 324 NW2d 58 (1982), the Michigan Court of Appeals reviewed the language of MCL 750.539c and determined:
The words “[a]ny person who is present or who is not present” merely acknowledge that eavesdropping may be committed by one who is actually in close physical proximity to a conversation or by one who is some distance away but eavesdrops utilizing a mechanical device. Quite plainly, one may be “present” during a conversation without being a party to the conversation and without his presence being apparent to those conversing. For example, the eavesdropping party could literally be under the eaves outside an open window.
Michigan’s status as a one-party consent state was recently affirmed in a decision from the federal Sixth Circuit Court of Appeals stating that “under the current law in Michigan, a participant does not violate Michigan’s eavesdropping statute by recording a conversation without the consent of the other participants.” Fisher v Perron, 30 F4th 289, 296 (CA 6, 2022).
Even though Michigan law allows for one party in a conversation to consent to recording the conversation, doorbell cameras may record conversations in which the co-owner of the unit with the doorbell is not participating in the conversation or does not have the consent of one party to record the conversation. To minimize the possibility of claims of wiretapping, a condominium association should consider whether the doorbell camera could record audio of a neighboring co-owner’s private conversations. In a case involving Kathy Griffin, Mezger v Bick, 66 Cal App 5th 76 (2021), the California Court of Appeals considered whether Griffin’s security cameras that recorded her neighbor’s property and conversations constituted an invasion of privacy.
The Court explained that the security camera was installed on the second floor of Griffin’s home and recorded video that included the second-story patio, the stairs leading up to the patio, trees in Griffin’s backyard, and a small portion of the neighbors’ backyard. Griffin alleged that the security camera was necessary to protect her security interests because as a public figure she had received numerous death threats. The neighbors contended that her explanation was a pretext given to the Court, and instead, she installed the security camera to spy on the neighbors and gather evidence to give to the homeowners association for noise complaints.
The Court reviewed fifteen recordings from the security camera and recounted the recordings. The security camera recorded Griffin’s property, although a small portion of the recording showed the neighbors’ patio. Additionally, the security camera recorded audio that came from the neighbors’ property, however, the audio was largely unrecognizable noise. The Court concluded that Griffin did not invade the neighbors’ privacy because although the recordings showed a small portion of the neighbors’ property, it did not show the neighbors or their guests (although one recording did capture the neighbors for six seconds). Moreover, the audio recordings did not capture any conversations where the content of the conversations were recognizable, and the few words that were recognizable were spoken at such a volume that the neighbors could not reasonably expect the words to be private. Accordingly, the Court determined that Griffin and her boyfriend did not invade their neighbors’ privacy.
Accordingly, condominium associations should be aware, and make co-owners aware, of the potential eavesdropping concerns of a co-owner’s doorbell camera’s recording of audio and video. Through audio recording, the co-owner may record the private or oral communications of others without their permission and inadvertently run afoul of MCL 750.539c. A condominium association should also ensure that the location of a doorbell camera is not installed in a place where other co-owners have a reasonable expectation of privacy for purposes of MCL 750.539d.
Conclusion
The master deed and bylaws for nearly all condominium associations will likely require that a co-owner obtain the association’s written approval before modifying the exterior of the unit, which would include obtaining approval before installing a doorbell camera. Although a request to install a doorbell camera may seem innocuous, doorbell cameras could be the basis for a dispute about a neighboring co-owner’s right to privacy or being recorded without their consent. Accordingly, a condominium association should carefully consider a co-owner’s request to install a doorbell camera and inquire whether the doorbell camera will record the common areas only or a portion of the condominium that is considered private. Additionally, a condominium association may restrict how the doorbell camera operates by prohibiting co-owners from using the doorbell camera as a security camera, and instead, to only record with the doorbell is activated.
Michael T. Pereira is an attorney with Hirzel Law, PLC, and focuses his practice on community association law and drafting, reviewing, and amending governing documents. Mr. Pereira received his Bachelor of Arts in Political Science from the University of Michigan and his Juris Doctor degree from the University of Detroit Mercy School of Law, where he graduated second in his class. After law school, Mr. Pereira worked as a research attorney and law clerk at the Michigan Court of Appeals before joining Hirzel Law, PLC. Mr. Pereira can be reached at (248) 478-1800 or mpereira@hirzellaw.com.
