Video cameras permeate all public places and most private office buildings and retail establishments. While initially placed for security purposes, their uses have expanded to allow traffic fines to be levied from pictures taken in many intersections, as well as to convictions for shop lifting and other crimes. With the increased use of hand held devices, many personal security firms have installed video cameras in private homes and driveways which transmit live feeds to a person’s cell phone. Such private cameras may be directed within the home but may also tape back yards, public streets and driveways.
A person must assume that he or she is subject to constant surveillance on most public streets and most retail and office buildings in the major cities and must further assume that many of the homes he or she visits are also subject to the same scrutiny.
Such cameras may be obvious and some establishments have signs posted to advise customers and the public. Most are not posted and not obvious, sometimes a bulb in the ceiling, sometimes invisible to the average person. Most elevators now have such security cameras installed.
The question necessarily arises as to who has what rights to have access to and use the tapes. Often a person’s location and activities are matters that a person wishes to keep private. Are there such privacy rights? This article shall discuss the California answer to these questions.
The Basic Law:
For both the public and employees, the test is:
- Whether the implicit invasion of privacy is justified for some appropriate security or business purpose and
- Whether there is a reasonable expectation of privacy.
- Further, the use of the video made must be in conformity with the rationale.
Analysis of the Law:
Sec. 632 of the California Penal Code deals with eavesdropping and recording of conversations. According to this section, it is forbidden to record or eavesdrop on any confidential communication. A conversation is confidential if one of the parties has an objective reasonable expectation that no one is listening or overhearing the conversation. The Court of Appeal of California (The People v. Michael Francis Gibbon) has ruled that this statute also applies to the use of hidden video cameras to record. This applies to semi-public places as well.
In Abigail v. Hillside Inc. the plaintiffs argued their rights under both the Common Law and Art. 1 Sec. 1 of the Constitution of California. The case deals with video surveillance of employees in their workplace. The court states that there is a three step framework. According to the analysis developed in this case, a video surveillance of an employee in the workplace is forbidden if the employee posses a legally protected private interest (1) and the expectations of the employee must be reasonable (2) and the employee must show that the intrusion is serious in nature, scope and actual or potential impact (3).
In Amber/Lopez vs. L.A. Department of Public Works, which also deals with the surveillance of employees, the plaintiffs argue their rights were violated under the United States Constitution Fourth Amendment protection against unreasonable searches and seizures.The Fourth Amendment was invoked since it was a public entity that was engaging in the surveillance and the Fourth Amendment protection against unreasonable searches and seizures applies only to government activity. The surveillance occurred in a semi-private area. According to the court, a video surveillance is forbidden if the employee has a reasonable expectation of privacy and if that is the case, the intrusion on that expectation shall be judged by the standard of reasonableness under all the circumstances.
The same rationale applies to public locales. Videos places on street corners or in parks have been routinely held as appropriate since the public should expect no privacy in public areas. That same rationale has been used to justify retail locales, office buildings, parking lots, etc. Put simply, once you are in a public locale, your privacy rights are eliminated.
Of course the reasonableness test would still apply. A unique camera that was able to photograph activity inside of an automobile located in a garage would be subject to closer inspection by the Court, but if the owner of the building could demonstrate thefts of objects from cars in that garage, the court would likely uphold such a type of camera.
Another related issue is the actual use of the tapes made. Assuming the owner of the tape seeks to utilize the tape in illegal ways (to extort a person or seek some illegal gain) then the usual criminal laws would apply against such illegal activities. However, such tapes are routinely subpoenaed by both civil attorneys and district attorneys to prove or disprove assertions in court. One must assume that if the issue is one of relevance to the court, that the parties will seek to obtain access to them and the privacy rights would be superseded by the needs of the court given the fact that the tapes were taken in public locales.
And if the tapes were taken in private locales, such as in the home of a neighbor one was visiting? Again, the test above would hinge on the reasonable expectation of privacy that may exist and the use for which the tape is intended.
Given that the courts have routinely held that the employer or landlord has to provide a reasonable level of security and that security cameras have become an relatively inexpensive method to increase security (and obtain traffic tickets) the use of such tools have become common. It has been estimated that the majority of city streets and office buildings are now routinely scanned by security cameras.
Where the issue becomes problematic is when the use of the tapes goes beyond seeking to increase security. Employers using them to ensure that employees work harder or do not interact inappropriately on the job may have legitimate grounds but abuse of the use of a video tape originally obtained for the “correct” reasons can lead to litigation and liability.
The Courts have ruled on the use that can be made as to employee supervision by video tapes, concentrating on the degree of reasonable privacy expectations that could be expected. An employer who sought to have video cameras in the rest rooms was held liable but the court made clear that reasonable use of such camera in the work place to assure security or stop sexual harassment of employees was perfectly acceptable.
Care must also be taken of the storage and use of video tapes once made. While the right to make the video may be secure, if utilized for actionable purposes, liability could be invoked. A recent case known to this writer involved a party in a divorce action seeking to obtain videos utilized by a hotel in an effort to obtain increased custody rights against the other spouse. Since the issue was of relevance to the court, the tapes were subject to subpoena, but not any tapes that may have been made in less public locales. Thus, the lobby of the hotel and the hallways were subject to subpoena and taping but not the gym sauna room that the hotel maintained. Again, reasonable expectation of privacy was the key issue.
While such videos are discoverable in litigation and subject to subpoena, the owner of the establishment that had kept the video, who normally erased the tapes weekly, agreed to keep the tape in a secure location at the request of one of the parties so it could be subpoenaed later. That led to litigation against the hotel by the other party for invasion of privacy which is still unresolved at this time. If the video had simply been stored as a matter of standard business practices, liability would not have attached. Because the holder of the video seemed to go beyond its legitimate uses for the purposes of assisting a party in litigation rather than providing security, liability may attach.
If you own the equipment, a good way to minimize the danger is simply to have clear notice to the public or employees that video is being recorded. The argument about “expectation of privacy” is eliminated, and if security is the goal it provides clear notice to the public as to what is being accomplished and it may have a deterrent effect. One client we represent does not have a sign but makes the camera obvious to any person who looks and makes no secret of the policy.
Whatever method is adopted, clear uniform methodology must be adopted as to access to and erasure of the videos once made. As one client put it, one thing he does not want is a year’s worth of videos waiting to be subpoenaed by any third party.
And if you are an employee or member of the public, you should assume that when in public you are on camera and unless you are in a clearly private locale, those tapes will be available to third parties with a good reason to view them.