Vicarious Consent: Eavesdropping to Protect Children Is Legal!

New York State’s Court of Appeals recently recognized a new exception to the current eavesdropping statute—vicarious consent. This exception to the law allows parents or guardians to protect the best interest of their children by legalizing surreptitious recordings that would otherwise be defined as eavesdropping.   

In more colloquial terms, evoking the exception of vicarious consent means: If you’re right, you are protecting your child; if you’re wrong, you are committing the crime of eavesdropping.

A Divided Ruling

According to the court, children can vicariously consent to the parental protection of their interests. While this decision reinforces an inherent component of parenthood, the ruling was widely divided.

The case of the People v. Badalamenti brought this issue to the forefront. In this case, a young boy’s biological father recorded evidence of abuse at the hands of his mother’s boyfriend, Anthony Badalamenti.

Although the defense argued that the recording—obtained on an open phone line—violated eavesdropping laws, the court ultimately ruled that the tape was admissible because the recording protected the child’s interests.

On behalf of the dissenters, Judge Leslie Stein highlighted widespread possibilities for abuse of this exception, particularly in instances where there is a contentious divorce. Battling spouses could use the concept of the child’s “best interest” to drudge up dirt on each other. In today’s world, it is simple to plant an inconspicuous recording device on a child who is shuttled back and forth between separated or divorcing parents.

In addition, the dissenters argued that whether a parent could permissibly vicariously consent on behalf of a child should actually be determined by the legislature, not the court. They believed that the court should not usurp the long-standing legislative prerogative by adding a doctrine into the statute.

My Thoughts On This Ruling: A Slippery Slope

The court’s ruling requires that the parent has a good-faith belief that the recording would serve the best interest of the child. “I just want to know what my son is saying to his girlfriend” does not qualify. There must be an objective, reasonable basis for the belief and subsequent action.

However, there are no absolutes about what scenarios qualify as vicarious consent exceptions.

Ostensibly, this creates a broad area for interpretation.

Parents or guardians who may be considering recording their children’s conversations or listening to their phone calls should consult an attorney who understands the rulings in order to determine whether the parent/child’s specific circumstance fits within the exception. If it does not, their action may be considered eavesdropping, and jail time is a potential repercussion.

I agree with the dissenters—the legislature should be solely responsible for rulings on eavesdropping. What is your opinion? If you would like to discuss this exception further, please call me at (212) 363-7701!

Saul Bienenfeld P.C.
450 Seventh Ave.
Suite 1408
New York, NY 10123
212-363-7701
sbienenfeld.com