“I always feel like somebody’s watching me … and I have no privacy.” In 1984, did the singer-songwriter Rockwell see the future when he sang those lyrics in his song, “Somebody’s Watching Me”? Maybe. 

In 2019, video and audio surveillance equipment seems to be everywhere, capturing a lot of everyone’s life. The movies that show the government or some private entity finding someone by tracking them through a series of public video cameras on street corners, street lights, public buildings, commercial buildings and businesses is not made up — it’s real. Cameras are everywhere. But when we are out in public in those moments, privacy is not expected. 

When we are out in restaurants, bars or other venues and someone videotapes us with their camera because we are acting silly, or when we are captured in the background of someone else’s photo or video — we have no expectation of privacy because we are in a public space. 

However, with the advent of affordable, wireless security systems and wireless cameras, the conversation of the right to privacy has shifted somewhat to individual homes and properties. Property owners are equipping their properties with cameras on the outside, possibly on the inside, and even in the doorbells. Additionally, it is not uncommon for property owners in more rural settings to have cameras at the beginning of their driveways. Cameras are starting to be located everywhere on private property. 

This movement by property owners has become so popular that two different companies invested millions of dollars in promoting themselves in Super Bowl 2019 commercials. These companies and others even hired celebrities and athletes to help promote their product. One thing we do know: Cameras will continue to be everywhere. 

The motivations behind homeowners’ decisions to have cameras in their homes and on their property are numerous. For instance, individuals may have surveillance equipment to protect their property, to deter individuals from coming on to their property, to have a watchful eye on their children who come home from school before an adult can be home, to monitor a caregiver who attends to a family member while they are away at work, or maybe they are trying to see which neighbor refuses to pick up after their dog. 

The WRA Legal Hotline has noticed an uptick in calls and discussions surrounding the rights of the sellers, the agents and the prospective buyers who are selling or purchasing properties when it comes to video and audio surveillance in the property. 

Currently, Wisconsin law does not prohibit a seller from using surveillance equipment or recording devices to monitor their home during open houses or individual showings. Further, Wisconsin law does not require sellers or their agents to notify buyers or post any signs informing the prospective buyers or agents that there is surveillance in the property. 

Due to the increasing questions surrounding this issue, the WRA decided to add as one of its legislative priorities during the 2019-20 legislative session to clarify in Wisconsin law that it is not a violation of privacy for a seller to have audio or video recording equipment in the property during an open house or individual showing. 

The following are the objectives of the recommended changes to Wisconsin law: 

• Clarify it is not an invasion of privacy when the seller has surveillance, whether audio or video, in an open house or individual showing. 
• Clarify that the application is narrow only to open houses and individual showings. 
• Avoid requiring a seller to post or disclose that he or she has surveillance equipment in the property. 
• Avoid requiring the real estate licensee to ask the seller about surveillance equipment in the property. 
• Avoid requiring any disclosure of the real estate licensee as to any surveillance equipment in the property.
• Broadly define “property” and “owner” to include all types of properties, not limiting the law to residential.
• Prohibit the use of surveillance equipment in bathrooms. 

Sellers arguably have the right to protect their property, and for safety reasons, should not have to publicly announce by posting on the property or via the MLS that there is surveillance equipment in the property. By requiring sellers to announce that they have surveillance equipment forfeits their safety rights in many ways. Sellers have placed their home on the market and allow buyers and agents to be in their home potentially without the seller or their agent there. Sellers are not inviting the buyer or their agent as an overnight guest, but again are offering the buyer the opportunity to be in their home in a very limited set of facts. 

Until legislation passes surrounding this issue, licensees would be best served to be very careful about their observations and comments regardless if they are knowingly being recorded. Best practice would be to always advise your buyers to pretend they are being videotaped or recorded when in a property for an individual showing or open house. 

Licensees should encourage buyers to refrain from saying certain things about the property — whether good or bad — until outside of the property. But keep in mind that “outside of the property” probably means out of earshot of the watchful doorbell that triggered a video recording when you stepped out on the porch after the showing. 

We will keep you informed of the progress of the pending legislation. If you have any questions, feel free to contact Cori Lamont or any members of the WRA lobbying team. 

Cori Lamont is Director of Corporate and Regulatory Affairs for the WRA.