What You Should Know About the Expectation of Privacy

Whether you’re hiring a private investigator for electronic surveillance or enlisting the services of Barefoot Professional Investigations as part of a domestic investigation , what you need us to find may not always be somewhere that’s obvious, or even legally accessible. There are many legal and ethical constraints on private investigators, but one of the most consequential — and pervasive — is the expectation of privacy.

The expectation of privacy is rooted in the Fourth Amendment to the United States Constitution, which reads:

As with every other article and amendment, the Fourth has been open to interpretation, and as time has passed, that interpretation has expanded to encompass parts of our daily life that the founders could not have anticipated. We live in times when nearly anyone has access to surveillance technology, and when someone’s desire to surveil rubs up against someone else’s desire for privacy, things can become complicated. 

So what does this look like in practice?

The expectation of privacy also comes with an expectation of privacy even though background checks rely heavily on public records searches. That’s because under the Fair Credit Reporting Act (FCRA), background checks cannot be performed without the consent of the subject. So whether you’re a company evaluating a prospective hire or a private individual doing your due diligence on a babysitter or home health aide, this is something to keep in mind. 

Electronic surveillance takes a number of forms and is easier now than it’s ever been. Indeed, the tools of the trade are now available to and used by government, corporations, small businesses, and homeowners, with the technology so pervasive that we don’t even think of it as surveillance. Key trackers, time trackers, and other tools that employers use to keep tabs on employees have been found to be legal, since work product and activities carried out on company property don’t carry the same privacy expectations or protections. “Work property” also extends to company vehicles, so the installation of fleet management software, telematics, and GPS tracking devices are all well within the boundaries of the law.

When it comes to private individuals, the rules are a bit different. Placing a GPS device in someone else’s vehicle would be verboten, even though you’re within your rights to track your own vehicle if it’s driven by a friend or family member. Likewise, personal devices — whether you’ve carried them with you into your workplace, or they never leave the confines of your home — are treated somewhat differently, because the expectation of privacy may apply here as well, meaning a subpoena is a more effective route.

Here, things get complicated. North Carolina is a single-party consent state, meaning that if either party to a conversation consents to its recording, it falls well within the letter and spirit of the law. With video surveillance, common/public areas (an outdoor plaza, a conference room, a nanny cam placed in a living room) and private spaces visible from public property are fair game. However, bathrooms, bedrooms, locker rooms, and the like are off-limits. Intent also makes a difference, since the law treats a security system much differently than something installed or used to snoop. That also applies to video surveillance when you suspect your significant other or spouse of infidelity; there’s no reasonable expectation of privacy in a restaurant, but you can’t ask us to install a hidden camera in your bedroom in hopes of catching someone in the act.

The expectation of privacy has an outsized impact on private investigators, too. We have a surprising amount of legal leeway, but there are ethical and legal constraints that apply to us the same as they would to an employer, private citizen, or member of law enforcement. 

Of course, if you’re hiring a private investigator, the restrictions placed on the profession by the law, ethics, and plain old common sense may frustrate you. The team at Barefoot Professional Investigations sees it differently. After all, the laws that protect the subject of our investigation protect you, too, often in ways that may not occur to you. When you contact us for a private investigator consultation , we’ll take time to listen to your needs and concerns, and in the process, we’ll also outline our responsibilities under the law that protect us and you alike.

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