When Private Eyes Add Private Ears

In 1981, Hall & Oates released “Private Eyes,” a song that makes surveillance sound almost cheerful. But despite the upbeat rhythm, the song creates the uneasy sense of being stalked.

When the song was written 45 years ago, it probably was referring to human surveillance. Someone, perhaps a private investigator, would be nearby, watching, following, and perhaps taking photographs.

Today, even cameras serve this function. Even a retail doorbell camera can watch someone’s home entrance, send alerts, save footage, and, depending on its settings, listen to what goes on outside.

A camera may be installed for a legitimate reason: identifying a package theft, ensuring a child makes it home from school safely, or figuring out who keeps leaving a side gate open. But when the “private eyes” also have “private ears,” if a device records conversations its owner never could have heard naturally, the owner may be committing a crime.

That’s because wiretapping laws originally designed to protect people from unauthorized recording of telephone conversations prohibit most recording of private conversations without proper prior consent.

Before activating audio, a business should know what its microphones capture, what notice is being given, who can access the recordings, and whether sound is necessary. Because the answers vary by state, setting, and equipment, an attorney should review the actual surveillance plan rather than a generic policy. This article discusses wiretapping laws and their implications for property owners, business owners, and apartment dwellers.

Eyes and Ears at an Apartment Complex

Imagine an apartment complex where packages have been disappearing and someone recently damaged a car in the garage. Management very reasonably responds by adding cameras to record the happenings in the lobby, package room, garage, elevators, and common hallways.

But when the cameras are installed, they are set to also record audio as well as video. Management could have disabled audio recording, but figures having that additional information could become useful. The cameras record seemingly private conversations in elevators or hushed discussions in empty hallways. Management may have committed a crime under wiretapping laws.

Let’s change the facts a bit. Imagine Maria, a tenant at the apartment complex, has had threatening notes slipped under her door. She thinks it’s her ex but can’t prove it. Management’s cameras don’t record her front door, so she decides to install a doorbell camera to identify the culprit.

Suppose Maria’s lease, like many, prohibits residents from installing anything outside of their unit, including on or around their door. If she installs the camera without permission, she is breaching her lease.

But suppose the apartment management approves Maria’s camera.  She installs it and sets it to record both video and audio. Suppose Maria’s camera records another tenant talking on the phone quietly while walking in the otherwise empty hallway. If Maria’s camera captures that conversation, she may have violated wiretapping laws.

Consider another scenario. Suppose instead of threatening notes, Maria’s problem is with someone’s dog urinating on the plants on her patio. She installs a camera on her patio (i.e., in her space, not the common area), again recording both audio and video.

A railing separates the neighboring patio. The neighbors can’t see the hidden camera but can see if anyone is on Maria’s patio. One evening, Maria’s camera records a hushed conversation between the neighbors without their consent. This is also a possible crime.

Wiretapping Laws and Audio Recording

Recording law often gets reduced to a map of “one-party” and “two-party” jurisdictions. One-party jurisdictions allow recording provided that one participant consents, but recording a conversation without any participants’ knowledge is illegal. Two-party jurisdictions, which would more aptly be called all-party jurisdictions, require that all participants consent before recording is permitted.

Under federal law, a person generally may record when that person is a party to the conversation or when one participant has given prior consent. A stranger who isn’t participating and has no participant’s consent doesn’t become the necessary “one party” simply because a microphone happens to be nearby – even if the microphone is visible.

Most people consider 11 states, California, Delaware, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, New Hampshire, Pennsylvania, and Washington, to be two-party states. But each state’s law is different.

Maryland, for instance, prohibits willfully intercepting an oral communication, which is words spoken in a “private conversation.” Maryland’s wiretapping law treats gaining access to a conversation through an electronic or mechanical device as an interception under the Wiretap Act. A willful violation of Maryland’s Wiretap Act is a felony punishable by up to five years in prison, a fine of up to $10,000, or both.

In the examples above, the one-party/two-party distinction is irrelevant. Neither Maria nor the apartment management is a participant in the conversations they record, nor did any speaker consent.

In Maryland, there still would be an inquiry whether the conversations were “private.” And a criminal court might say a conversation in an empty common hallway or elevator or on an outdoor patio wasn’t “private.” However, with jail time and a $10,000 fine on the line, the better course of action is to turn off the audio recording.

What’s Consent?

Suppose in our example, management or Maria posts a sign saying, “Security Cameras in Use.” That doesn’t inform individuals that their voices are being recorded. Even if the sign says “Audio and Video Recording in Progress,” it may not be enough because notice isn’t the same thing as consent.

Let's move the venue to a recording studio where a music group is recording an album. The group obviously has consented to being recorded. Suppose the engineer inadvertently keeps the recording running during a break when only two of the musicians are in the studio, and their conversation about future plans to leave the group is recorded.

This is where the contract with the recording studio becomes important. Did it include a blanket consent to recording anything that happened in the studio? If it didn’t (which is likely), then any additional recording could be unlawful. And while not disclosing an unlawful recording doesn’t make it lawful, suppose that recording remains and finds its way to the rest of the band when they are listening to the recording session and causes economic harm. The recording studio could find itself on the wrong side of a lawsuit and with harm to its reputation in the industry.

The Problem with AI Notetakers

Anyone who has worked with me knows that one of my pet peeves is AI notetakers. I’ve disabled them on my devices. However, they launch alongside a group meeting app, usually without the meeting organizer’s consent and often without the organizer's knowledge.

There’s no consent to AI surveillance. Instead, they have a pop-up that informs participants that recording is taking place. There’s a place to click on “ok,” which might be consent, but if a participant doesn’t click on “ok,” it records anyway – without any consent.

Maryland law allows “operators of “wire or electronic communication services” to “intercept, disclose or use” certain communications, but ONLY if it’s a “necessary incident to the rendition of the service or to the protection of the rights or property of the provider of that service.” It’s a hard sell that an online group meeting company needs to record my confidential meetings with a client to protect its rights.

Another problem with the AI notetaker is that they don’t necessarily transcribe the meeting accurately. In a recent meeting, I asked that the AI be turned off and explained the legality. I also made some negative comments about the accuracy of notetakers. There was a significant discussion where the meeting organizer said they hadn’t intended to turn it on and weren’t sure how to turn it off. Eventually, the notetaker was disabled, and the meeting continued.

But when I received the notes that were taken before the notetaker was disabled, it had omitted my discussion of the legality and negative comments about the accuracy, as well as the organizer’s statement that they hadn’t intended to use it and were having trouble turning it off. In other words, the notetaker had scrubbed out anything that might look negative about it.

Security Cameras Can Violate Other Laws

Suppose John lives across the hall from Maria. He obtained management’s permission to install a doorbell camera and doesn’t enable audio recording. However, instead of using his camera for security, John uses it to watch comings and goings at Maria’s apartment. He notes when she typically leaves and returns home.

Soon John knows her patterns, who her friends are, and when she is on vacation. After John mentions casually to Maria how late she got home and that her friend stopped by when she wasn’t there, Maria realizes he’s been using his camera to monitor her.

Needless to say, Maria is concerned about what appears to be stalking. Maryland, like many states, has harassment and stalking statutes that might give Maria the right to a protective order.

Maria also is understandably upset with her management for allowing John’s camera. Whether she can successfully sue management, situations like these provide a good example of why apartment management might want to consider prohibiting all tenant cameras.

“Private Ears” Change the Landscape

In the 1980s, Hall & Oates warned about “private eyes.” Security cameras can protect people and property and can provide valuable evidence after something goes wrong. They also can be a disincentive against bad behavior when someone knows their actions are being recorded.

Forty years later, “private ears” have changed things. Anyone using a security camera or other recording device needs to consider placement, audio recording, and consent. They also need to consider if their contracts, such as a lease or recording contract, allow them to take audio or video recordings. Further, anyone using AI notetakers not only needs to consider the legality of the recording but also the possibility that the resulting notes may be inaccurate or biased.

While these may seem like small issues, unauthorized recording carries the possibility of big consequences. When in doubt, it’s best to disable audio recording.

© 2026 by Elizabeth A. Whitman

Any references to clients and their legal situations have been modified to protect client confidentiality, and references to real-life situations have been modified to protect privacy.

DISCLAIMER: The content of this blog is for informational purposes only and does not provide legal advice. No one should take any action regarding the information in this blog without first seeking the advice of an attorney. Neither reading this blog nor communication with Whitman Legal Solutions, LLC or Elizabeth A. Whitman creates an attorney-client relationship. No attorney-client relationship will exist with Whitman Legal Solutions, LLC or any attorney affiliated with it unless a written contract is signed by all parties.