From Safety to Surveillance: When is it Okay to Spy on Your Kids? by Elizabeth Shulok
Imagine hiding a webcam in your teenager’s bedroom and recording them unaware. Most of us would recognize this as an invasion of privacy, and potentially child pornography if the camera records the child in a state of undress.
But install a webcam in your toddler’s bedroom, and it is an acceptable safety measure to make sure your child is safe when they are alone in their room.
At what point does recording your child transition from responsible parenting to an invasion of privacy?
Nearly 3 years ago, parents filed suit against the makers of Hello Barbie, a WiFi enabled doll that uses voice recognition technology to allow a child to have a “conversation” with the doll. Although Mattel claims the doll complies with COPPA, or the Children’s Online Privacy Protection Act, the plaintiffs claim that Mattel did not do enough to protect the privacy of playmates of the child who owns the doll.
COPPA was created to protect the privacy of children under 13. One of the provisions required by COPPA is that any website or service geared towards children under 13, must get parental consent before collecting data on a child. And indeed Hello Barbie does require a parent to set up an account and consent to allowing the toy to record their child’s speech.
However, as the lawsuit contends, friends of the doll’s owner may also be recorded, despite their own parents not having consented to the collection of this personal data.
The debate on Hello Barbie has centered around this main privacy flaw. But does the toy, when used as intended, violate wiretapping laws?
To comply with COPPA, the makers of Hello Barbie must make the personal data collected from their child available for the parent to review. In this case, that data are the voice recordings. In essence, this toy allows a parent to eavesdrop on their child’s private conversations with the doll when they are not in the room.
Federally, a conversation can be recorded with the consent of only one party. Essentially, it is legal to record a conversation as long as you are a party to the conversation, even if others are unaware of the recording. In California and some other states, however, recording a conversation is illegal unless all parties are aware of and consent to the recording.
Recording consent laws by state
Although recording another adult without their knowledge would clearly violate federal wiretapping laws, it is unclear if this applies to your own child. (Since the conversation is with a doll, this is essentially akin to recording someone talking to themselves, which would be illegal under federal law without their knowledge and consent.)
Looking to the law on recording children’s conversations, much of the legal precedence involves child custody or abuse cases, in which one parent surreptitiously records a phone conversation between their child and another adult (often the other parent). In most cases the courts have found that for one-party consent laws, the parent can vicariously consent on behalf of their child to the recording of the conversation. And in the case of two-party consent laws, the courts have ruled that the recordings, which would otherwise have been illegal according to state law, are permissible as evidence in court if the parent recorded the conversation in the child’s best interests.
In other words, recording your child’s conversation when you are not a party to the conversation is illegal – unless the recordings collect evidence of abuse. If you record the conversation and there is no evidence of abuse, then those recordings are illegal. Although as long as you do not use them, it is likely not to become an issue.
Looking at the Hello Barbie case, the parent consents to have recordings of their child collected by a third party. However, the doll can also be seen as a recording device by which the parent is listening in on their child’s private conversations. If the parent was a party to the conversation and included in the recordings, this would be legal under one-party consent laws, and likely legal in other cases as the parent is consenting on behalf of the child and is present during the conversation.
However, if the parent uses the recordings from Hello Barbie as a way to listen in on their child’s conversations when the child believes they are alone, this seems to amount to wiretapping. That could still be acceptable if the recording is done in the child’s best interests, but that would be a tough case to argue under normal circumstances.
As more toys become WiFi enabled and capture data on children, we need to consider what is really in the best interests of the child and whether some toys simply do not belong on the market.
Neil, M. (2015, December 9). Moms sue Mattel, saying “Hello Barbie” doll violates privacy. Retrieved July 29, 2018, from http://www.abajournal.com/news/article/hello_barbie_violates_privacy_of_doll_owners_playmates_moms_say_in_lawsuit/
Dinger, Daniel R (2005). Should Parents Be Allowed to Record a Child’s Telephone Conversations When They Believe the Child Is in Danger?: An Examination of the Federal Wiretap Statute and the Doctrine of Vicarious Consent in the Context of a Criminal Prosecution. Seattle University Law Review, 28(4), 955-1027.
Adams, Allison B. (Fall 2013). War of the Wiretaps: Serving the Best Interests of the Children? Family Law Quarterly, 47(3), 485-504.
Children”s Online Privacy Protection Rule (“COPPA”). Retrieved July 29, 2018, from https://www.ftc.gov/enforcement/rules/rulemaking-regulatory-reform-proceedings/childrens-online-privacy-protection-rule