KEN KIRSCHENBAUM, ESQ ALARM - SECURITY INDUSTRY LEGAL EMAIL NEWSLETTER / THE ALARM EXCHANGE You can read all of our articles on our website. Having trouble getting our emails? Change your spam controls and white list ken@kirschenbaumesq.com ******************************* audio in public place / cost to replace communication and other obsolete equipment June 26, 2019 **************************** audio in public place **************************** Ken Can you tell me if in California, a "two party consent state" it is illegal to have put a camera with audio recording going on, at the poolside area of the community pool? The landlord has admitted in writing to me that the camera was recording audio. I have researched the brand of the camera and taken a picture of the microphone area which is more than 1.5 inch diameter and has capacity for two-way audio. I am outraged and want the cameras taken down, as I have no way of knowing when the audio is turned on or off. For now, he says he has turned it off, but he also says that his attorneys have told him that it is NOT illegal, so this gives me little assurance as to his future use of the audio capacity, without my consent. I have made it clear in writing to him, that I absolutely protest, and do not consent to audio recording. Can you advise? I find few experts on the subject, and your dissertation online seemed the most studied and accurate. Thank you, member of the public **************************** Response **************************** I declined to offer an opinion to this member of the public because our advice is for the alarm industry professions. However, I will offer an opinion here. Mechanical interception or recording of audio is not permitted without consent; either one party to the conversation or all parties to the conversation. Except in the most public of places and under circumstances where people shouting at each other would not expect any privacy, audio interception and recording is prohibited. Consent does not have to be given in writing more than once. So a tenant in a building, a member of a club, people signing up to visit a place for a season, people entering any place where they consent in writing to be there, can all consent to audio interception and recording. I think it needs to be more than signs; at least it should be [I haven't researched every state where a judge may have opined on this issue]. So the above question involved a community pool. If the public was required to sign-up to use the pool or sign a consent to rules and regulations for entrance, audio consent could be included. In the end it will always matter what and how the audio is used. Violation of audio laws is usually criminal, so reporting a violation to law enforcement may cause investigation and prosecution. The truly outraged can bring a lawsuit for injunctive relief to remove the offending listening devices. ************************** cost to replace communication and other obsolete equipment ************************** Ken I am an alarm Co. who has been in business for over 20yrs. I am noticing a repeat effect on Honeywell / Resideo, AT&T and Verizon 3G sunset rules. I have customers that their service stop working or keeps going on and off. Service has always been fine ever since this new sunset rule which is 2 yrs away will comes into effect. I put the new LTE Radio in and it works fine. I believe they just want you to change service at my cost. If the customer is knowledgeable they are not paying for an upgrade after just paying from 2G upgrade to 3G. I need to make these calls a priority because if the service is not working an issue occurs I'm at fault. Is there anyway to make Honeywell / Resideo, AT&T and Verizon 3G at fault? Should Honeywell / Resideo, give rebates for replacing the Radios? Thank You anon ******************************* Response ******************************* Clearly a manufacturer should not sell to you, and you should not sell to a customer, equipment that is already obsolete or soon to be obsolete, if alternate, up to date, equipment is available. But I think liability stops there. Neither manufacturers nor you can stop the escalating pace of evolving technology; technology that not only improves what's existing but replaces it. The Standard Form agreements, the All in One agreements, provide that you are not responsible for equipment or services becoming obsolete and replacement is at subscriber's cost. Keep up with the times and explain possible need to upgrade to your subscribers. This definitely applies to keeping your contracts updated because the updated contracts address the constant changes in the alarm industry. ***************************** To order up to date Standard Form Alarm / Security / Fire and related forms, click here:www.alarmcontracts.com ************************* CONCIERGE LAWYER SERVICE FOR THE ALARM INDUSTRY PROGRAM You can check out the program and sign up here: https://www.kirschenbaumesq.com/page/concierge or contact our Program Coordinator Stacy Spector, Esq at 516 747 6700 x 304. *********************** NOTICE: You can always read our Articles on our website at ww.kirschenbaumesq.com/page/alarm-articles *********************** THE ALARM EXCHANGE
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Ken Kirschenbaum,Esq Kirschenbaum & Kirschenbaum PC Attorneys at Law 200 Garden City Plaza Garden City, NY 11530 516 747 6700 x 301 ken@kirschenbaumesq.com www.KirschenbaumEsq.com
