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Some Airbnb Hosts Are Secretly Recording Their Guests. Is It Legal?

One of Airbnb’s taglines is “Belong Anywhere.” Perhaps they could update it to it “Be Watched Anywhere,” if instances of hosts secretly filming their renters continues. The latest: Archivist Jason Scott tweeted that his colleague found a hidden camera in the bedroom of an Airbnb he was renting, the New York Post reported.

The camera looked like a motion detector, but turned out to be a hidden camera hooked up to the internet. The guest left in the middle of the night and reported the incident to Airbnb, who refunded the money and banned the host permanently.

Such events have become increasingly commonplace in the last couple of years and read disturbingly like a sci-fi dystopian future of constant surveillance. A Florida homeowner who rented his property out to guests was recently found to have been secretly recording them, as well as many others, for years. Prior to this, a woman who discovered a secret camera hidden in a bookcase in a Los Angeles Airbnb rental. In 2015, it happened to eight people who rented an Airbnb together in Montreal over New Year’s and were not happy to discover a camera hidden in a basket in a bookshelf right next to the bed. They found another in the living room, and still another in the kitchen.

In 2015, a German woman sued Airbnb after discovering a hidden camera — she noticed a light coming from a bookshelf in the living room — that was recording not only her intimate conversations with her partner, but also her walking around naked in an Irvine, Calif. rental. Her partner happened to be in IT, and was able to deduce that the light came from a remote-controlled camera being directed around to get better angles.

Airbnb has a clear policy (as of 2014, anyway) against hiding any surveillance from guests. The policy now reads that they “require hosts to disclose all surveillance devices in their listings, and we prohibit any surveillance devices in certain private spaces (such as bedrooms and bathrooms) regardless of whether they’ve been disclosed… In addition, you should ensure that your use of surveillance equipment is consistent with applicable local laws and regulations.”

But some hosts clearly ignore this, and the applicable laws can be tricky because they hinge on the nuances of what we think of as public versus private space. Generally speaking, we all have a “reasonable expectation of privacy” in our lives, or what’s called the right to be left alone. Violating that is illegal, but, critically, it depends on where you are.

In public, we have essentially no real right to privacy. You can’t expect that people won’t see you or overhear what you’re saying, or watch what you’re doing, or snap a picture. (This includes a photographer taking your photo in public without your consent, and even selling it, as long as they aren’t selling it to advertise a product.)

Taking someone’s picture without their consent — or recording them — is illegal in any private space (even those set within a public space, like a bathroom, changing room or locker room). Someone can’t just record you in your home — or even in their home — in the bathroom or bedroom, because these are spaces where there’s a reasonable expectation of privacy.

In civil or tort law, the bar here is what would offend the average person. Most of us would be offended by being filmed getting undressed or using the bathroom anywhere, whether in our own homes, a hotel room, or any place we’re staying. It follows that a landlord can’t secretly film a tenant (unless what’s being filmed is your apartment building’s “common area”), and a hotel can’t do it to guests. So how can Airbnb hosts get away with it?

They shouldn’t be able to, but clearly some people do until they’re caught. Part of the Airbnb confusion for the average person is that anyone is free to set up surveillance equipment in their own dwelling. As lawyer Aditi Mukherji explains, every state in the U.S. allows the video-only recording of anything in your home without notifying anyone (if you’re grabbing audio, though, you run into wiretapping laws). This includes nanny cams, which are permitted as long as they are being used to monitor a child or prevent theft, but not for creepy stuff like monitoring the nanny directly in a private space within your home, like the bathroom.

Renting a space to someone in your home or even inviting them to stay with you as a guest still does not mean you can record them without consent. “There’s still a reasonable expectation of privacy if you’re crashing on someone’s couch,” University of Colorado privacy scholar Paul Ohm told Splinter News. “Even if it’s his house, you would expect privacy when he’s away if you’re not informed about a camera.”

Airbnb spokesperson Jeff Henry told Buzzfeed that illegal recordings in the instances above are “incredibly rare,” and that in the situation involving Jason Scott’s coworker, the host was banned and the guest was fully refunded. “Cameras are never allowed in bathrooms or bedrooms; any other cameras must be properly disclosed to guests ahead of time,” he added.

But Buzzfeed’s own investigation found instances where other illegally recorded guests didn’t get such swift resolution — in part because they didn’t take photos of the cameras or didn’t report the incident until the host accused the guest of damaging the property (accidentally revealing that the reason the host knew of the damage is because they were secretly recorded them).

Such issues are being hotly debated as recording and video technology becomes ever more available and inexpensive, and the transgressions committed with such technologies rapidly outpace the clarity of the law. Take the controversy over creepshots and upskirt photos taken in public places. Most of us think that even in public, what’s up our skirt is private, but the law isn’t (yet) phrased that way in many states. A revenge porn bill also intends to make the sharing of obscene or intimate content a federal crime. Currently, it isn’t.

Similarly, Uber and Lyft drivers are increasingly recording their rides with dashboard cameras to document rude passengers and violence, but they may also be violating eavesdropping laws, Quartz reported. Again, the issue forces us to answer whether we have a reasonable expectation of privacy in the back of a rideshare.

Experts say that in this case, we really don’t. “The back of a car ‘probably’ doesn’t qualify, because the driver could easily overhear any conversation taking place,” Mason Kortz, an instructor at Harvard Law School’s Cyberlaw Clinic, told Quartz.

Similarly, with drones that can peer into bedrooms and scan license plates, states are scrambling to revisit or re-word privacy laws—or write new ones—that can specifically restrict data gathering near residences and other areas where, again, it is reasonable to expect privacy, PBS reported.

Some experts think the laws we have protecting privacy right now are just fine.

“If a state already has a law that allows for a reasonable expectation of privacy, which many states do, it shouldn’t matter how the privacy was violated,” Matt Waite, a journalism professor at the University of Nebraska-Lincoln, told PBS.

But others argue there should also be a federal law protecting us from drone surveillance, and currently there isn’t (though theDrone Aircraft Privacy and Transparency Act of 2017 has been introduced).

Until these laws catch up, or more cases force clarification at trial, consumers will still have to be vigilant about every space they inhabit, ever aware that there is no place that does not see us.

Sure, Airbnb may take action, but first you’re going to have to be secretly recorded by someone who happens to know your name and where you live. Numerous guides have popped up in response to these aggressions, advising renters on how to detect hidden cameras on the premises, from shining a flashlight around the room in the dark to detect the reflective surface of a lens, to devices that will detect any cameras operating on the wifi network.

If that’s what it feels like to belong anywhere, many of us may decide to just stay home and fight battles in a more familiar habitat. Better the evil we know.