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Comment by bastawhiz | Hacker News Reader

You already consented by agreeing to the terms of service. If someone else is talking to their smart device while you're talking, it's ostensibly their responsibility. There's no reasonable laws that prevent you from being overheard in the back of a recorded phone conversation

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(IANAL, but) Not accurate in the US.

Most states are either one party or two party consent states. One party = you can unilaterally record anything (not sure this includes things you're not actively involved with, e.g. spying). Two party = you must have consent of everyone in the recording.

By a plain reading of two party consent statutes, people are in violation if their home speaker records a guest without obtaining consent.

I'm sure Google and Amazon's lawyers would try to weasel out of compliance via claimed anonymization, but that's definitely not the spirit of the law.

Old, but thorough: http://www.mwl-law.com/wp-content/uploads/2013/03/LAWS-ON-RE...

You're also going to bump up into specific wording on whether a given statute covers only telephone conversations or oral conversations, as most of these are phone wiretap laws that may or may not have been worked ambiguously.

Additionally, there are federal statutes that likely also bear.

Know that even in all party consent states, if you continue talking after being made aware that the conversation is being recorded implies consent. This is why devices like google home are legal, they make a loud warning sound before they begin recording. For example in CA the law states that:

> (a) A person who, intentionally and without the consent of all parties to a confidential communication, uses an electronic amplifying or recording device to eavesdrop upon or record the confidential communication, whether the communication is carried on among the parties in the presence of one another or by means of a telegraph, telephone, or other device, except a radio, shall be punished...

(b) For the purposes of this section, “person” means an individual, business association, partnership, corporation, limited liability company, or other legal entity, and an individual acting or purporting to act for or on behalf of any government or subdivision thereof, whether federal, state, or local, but excludes an individual known by all parties to a confidential communication to be overhearing or recording the communication.

https://leginfo.legislature.ca.gov/faces/codes_displaySectio...

> they make a loud warning sound before they begin recording

This contradicts my personal experience last week with a google-controlled music player. Music was the only response to a voice command to play music, and silence was the only response to a voice command to turn it off.

My understanding of recording law is that in One Party states you need to be part of the conversation to record it. Speculation: This would mean that the device / owner would be in violation if the owner was not in the room?

Ironically, if the owner were not in the room, I'd expect the device manufacturer would be more directly liable.

How can a homeowner be responsible for a device for which they (a) don't control the operation of & (b) don't control the software of?

At that point, whether a device captures incidental recording seems entirely under control of the manufacturer.

Sorry for the extreme analogy, but a gun owner is responsible if their nephew accesses their gun when they're not home.

It is not farfetched to imagine that, to be in compliance with the law, you would need to unplug your listening devices to avoid them accidentally going off.

The owner of a listening device might be ignorant of audio being stored and audited by human listeners. It's farfetched to think a gun owner might be ignorant of a gun's dangers because they didn't read the terms of service in detail.

So I buy one of these things; install it; put it online, but i'm not responsible for it? I don't understand. Would you be happy with that defence from a hotel if your wife stayed in a hotel room and was killed by carbon monoxide from a faulty heater?

And of course there are children to consider:

https://www.seattletimes.com/business/amazon/suit-alleges-am...

Not in the case of the device being someone else's. I don't have any Google or Amazon smart listeners, so I never accepted them. Yet if my voice is in any of these recordings, well...

As long as you are warned that you are being recorded then the law considers you to have given consent if you decide to continue to talk. This is why all the home devices make a loud sound that you cannot disable before they begin recording.

Except that I don't know what that sound means. I know what the one my device makes is, but I've never heard the others. Unless it's a human voice saying, "This conversation is now being recorded" I can't be expected to know what a random beep from a device means. It could just mean the person got a notification or something. (And even if it is a recognizable sentence, it assumes I understand the human language the device is set to.)

How do you square that with a security cameras? Do you need to consent every time you enter a space secured by them?

The rules regarding audio recording are different from video. This is why many security cameras do not actually record audio.

I think the laws are different primarily due to the different pace of audio vs. video recording technology. Audio recording of phone calls etc. has been feasible for a long time so laws were written about that. Ubiquitous video recording has really only become a thing in the past 2 decades or so.

Absolutely. I feel like the pace of adoption has been mostly driven by per-bit storage costs falling (and high efficiency codecs).

Above all else, people will do useful things with computers once the price to do so matches the utility. And we're far on the other side of that with cameras.

I can't wait to see what the next decade+ does to all the Facebook-esque camera startups. It's going to be hard to monetize your customer's video feeds once regulation clamps down.

I don’t believe there are laws prohibiting video surveillance in public by businesses. Some states have laws prohibiting filming in locations where one expects privacy. Other states allow filming in private spaces as long as the business notifies employees and customers they are being filmed.

Yea most states also have a pretty clear "if the device is obvious" law. It's also why businesses put up "smile you are on camera" signs, especially if their camera isn't immediately recognizable.

There are some rules concerning security cameras as well. I recently found out that private CCTV (at least in the UK) can't record public areas (e.g only your porch). Someone got sued over this recently.

There have been some stories in HN about opting out of face recognition as well. Maybe the laws for video are different as the other reply says, but there are privacy concerns in there as well.

edit: here's a list of GDPR fines (not comprehensive as I only see 2 in the UK). If you filter by CCTV you'll find a couple of examples from Austria: http://enforcementtracker.com/

> There have been some stories in HN about opting out of face recognition as well

Easiest way to do that is to wear a niqab or burka.

Face coverings are not legal in public in all countries, but even where they are, why should someone concerned about creeping surveillance go to great lengths to modify their own behaviour because someone else is unwittingly breaking the law because a product they bought was made by someone who couldn’t be bothered to do it right?

> Face coverings are not legal in public in all countries,

And that of course is the point.

Please elaborate

Video and audio can have different laws. In my state, video recording in my home or business is legal, but if I record audio, I need 2 party consent.

So this outrage is in the Netherlands. Security cameras may not be pointed by businesses at public space (which we have a lot of unlike the US). The local government itself may place cameras though but private parties, what kind of nightmare situation is that?

And in public or private space when there are cameras there needs to be signs everywhere to warn and inform you.

So in the Netherlands at least.. Google recording a conversation with someone who doesn't know Google is recording is definitely illegal.

The question is: will they prosecute? Then it becomes a geopolitical question because we are a small country with a disproportionate number of Google datacenters.

So to summarize:

- This is definitely illegal in the Netherlands

- There is no consent of others participating and you really do need that

- Fine print is not consent: consent of terms and conditions requires a majority (determined by polling or common sense of a judge) of users to be aware and knowledgeable what they consented to.

- there won't be prosecution by the Dutch public prosecutor.

- there will be a lobby for the EU to buttrape Google but it may use different reasons or context

I find this reasonable; you wouldn't sue the manufacturer of a recording device if someone made a secret recording with it. I do think this means that the smartphone owner is liable, and should be fined or jailed.

But in this particular case, it's the company doing the recordings, not the owner of the device, so it's a slightly different situation, in my opinion.

That said... The owner could be liable if for example it were necessary to explicitly inform of the existence of such devices the possibility of being recorded.

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