Legal Issues In AV
Ever have the feeling you're being watched? In today's technology age, you probably are.
Ever have the feeling you're being watched? In today's technology age, you probably are. Take a look at popular national newscasts such as CNN's “Anderson Cooper 360,” which features the “Shot of the Day,” often taken from surveillance video footage. Sure, the crook that broke a restaurant's plate glass window to steal the tip jar only to attempt to exit the room via the unbroken window is completely hilarious, but what about the hours of video that were captured before and after that incident?
The proliferation of surveillance systems has skyrocketed, driven by the argument for deterring crime and terrorism in a post-9/11 world and the availability of affordable cameras, switchers, and hard-disk recorders. Systems integrators that are installing these systems need to pause and think about the ramifications: Are they undermining privacy rights, or outright breaking the law? Could they be held liable?
In the popular, two-part article “Surveillance Nation,” published in Technology Review in April and May 2003, authors Dan Farmer and Charles Mann say there are 26 million surveillance cameras installed worldwide — 11 million in the United States alone. And the federal government is doing its part to drive adoption of surveillance systems. According to the Government Accountability Office, the U.S. Park Police installed a $2 million video surveillance system to monitor the District of Columbia.
“The biggest shift has been cultural,” says Steve Posner, an attorney in Evergreen, Colo., who is author of the legal treatise, “Privacy Law and the USA PATRIOT Act.” (LexisNexis/Matthew Bender Publishing, April 2006)
Christopher Calabrese, counsel for the American Civil Liberties Union's Technology & Liberty Project in New York, agrees. “The law hasn't changed much for private parties that install surveillance systems,” he says. “On a federal level, we are seeing increased and/or illegal surveillance by the government. Culturally, security is a higher priority for our society since 9/11.”
And privacy barriers are coming down. “There should be no expectation of privacy in a public setting,” says P.J. Lynch, CEO of VistaScape Security Systems, a wholly owned subsidiary of Siemens Building Technologies in Atlanta that provides technical infrastructure for security, comfort, and efficiency in buildings. “The Fourth Amendment has become the standard used for privacy protection. The laws have not changed, but people's expectations are moderating.”
Laws have tried to keep pace with the fast-changing world of AV technology. Audio recordings are governed by the Electronic Communications Privacy Act of 1986 (16 U.S.C. Section 2510), which was an amendment to Title III of the Omnibus Crime Control and Safe Streets Act of 1968. The ECPA limits the ability to intercept and record information from telephone lines and computers. Law enforcement must get a warrant to covertly collect information, but video recordings out in public (without audio) do not require such approval.
“If you are walking down the street in public, you're putting yourself out there to be seen, and the assumption is that a video recording is acceptable,” says Calabrese. “But an audio recording of a conversation you are having as you walk down the street is still considered private.”
The same idea applies to store owners or building managers who want to install some type of audio recording or monitoring system inside buildings. “You cannot put up a sign that is a blanket statement for notification that audio is being recorded,” says Calabrese.
“Many of the overarching federal issues deal with audio recording, since it is illegal to intercept oral communication; there are not many exceptions to the rule. You can [record] video all you want, but you have to be careful with audio. It is better to err on the side of caution with audio recordings.”
Calabrese notes that state laws cover recording telephone conversations. Each state varies, but the law follows either one-party or two-party consent. Under one-party consent, the recording party needs to inform the other that they are being recorded. Under two-party consent, the other party must agree to being recorded.
As video surveillance systems become more popular with private citizens, corporations, and municipalities, the laws governing this type of surveillance often are misunderstood. “The question is, what is a reasonable expectation of privacy?” says Posner. “In the work-place, you are dealing with e-mail and Internet monitoring, but what about the employer who wants to install a video surveillance system? That brings up a host of legal questions.”
Posner notes that anyone installing a surveillance system should ask themselves a few important questions, including:
- Who is the observed person?
- Does this person have a fiduciary capacity to the company that makes it necessary to be under surveillance?
- Who is conducting the surveillance?
- Who owns the surveillance equipment?
- Is the surveillance data real time or will it be stored?
- Once recorded, what happens to the information?
- Is the surveillance overt or covert?
Although the United States does not have a federal workplace surveillance law, certain surveillance laws may apply. But potential legal and human resources issues go beyond the strict law of surveillance, so employers need to balance how the stress of surveillance affects the work environment.
“Does it create a hostile work environment that could give rise to labor litigation?” asks Posner. “If it does, that could affect data-retention policies. While keeping surveillance data on an employee for an extended period of time might help create a more complete profile of the employee, surveillance footage might also be obtained by employee plaintiffs during the discovery phase of litigation and used as evidence of management practices.”
Video surveillance in the workplace can touch upon other human resources issues, such as discrimination. Posner notes a 1995 class-action lawsuit in Pennsylvania against a company that placed restricted-duty workers in a specific area of a building, then set up video recorders to record the activities there. “This was like profiling people who claimed to be injured,” he explains.
Outside the workplace, video surveillance often intersects with the need to balance privacy with the need for law enforcement to gather information. In United States v. Cuevas-Sanchez, 821 F.2d 248 (5th Cir. 1987), it is noted that video is considered particularly intrusive and provokes an immediate, negative visceral reaction.
The case involved law enforcement agents who placed a video surveillance camera on top of a utility pole to observe a private, fenced-in backyard. The Fifth Circuit Court of Appeals held the decision that this was a violation of Fourth Amendment rights.
In another case, United States vs. Torres, 751 F. 2nd 875, 876 (7th Circuit, 1984), the government secretly entered a building to record activities inside. Since it was an illegal activity (the assembling of bombs), the court found that the video evidence should be admissible and that this did not violate the Fourth Amendment.
Using video surveillance to protect assets isn't a new idea. Many retailers have installed closed-circuit television systems to prevent theft. However, industries concerned with homeland security are adopting video surveillance and companion technologies to help secure their assets.
“The port industry is an early adopter of our technology, since you can't put a fence around water,” says Lynch.
VistaScape software automates the process of watching cameras and other sensors; exception-based reporting alerts the user when there is a problem. VistaScape often works with systems integrators that put together surveillance systems using hardware such as cameras, radar, radio frequency identification, or sonar.
Information from the ShotSpotter Gunshot Location System includes the date and time of an incident, details of the location, and a map of the involved area.
“Our software will take the feed and analyze it to figure out what's going on in the scene. The user sees an icon versus an actual picture; icons allow us to combine scenes onto one screen,” says Lynch. “The client decides recording and archiving parameters as well as the [system's recording] policies. The software highlights policy exceptions.”
Companion technologies such as VistaScape's are on the rise, given the tsunami of data created by surveillance systems. “It's been a bull market for us, because vigilant monitoring of 100 to 200 cameras by a human being is impossible,” says Lynch.
From a legal standpoint, Lynch notes that crime trumps privacy. “Expectations of privacy have been higher than the law. But if a person is in a restricted area such as a port, you're trespassing and breaking the law. There should be no expectation of privacy in that example.”
Overall, it is important to understand the responsibilities of companies that install and use surveillance systems. Posner suggests that a good place to start is the state government privacy office in the jurisdiction of the installation.
“For example, California has its Office of Privacy Protection. In Colorado, it's the Attorney General's office,” says Posner. “States are making an effort in this regard, but they are also strapped for funding. Integrators looking for advice on a certain installation should consult an attorney.”
To underline the point, Calabrese explains: “If you install an AV system, and it is illegal, you are liable. Ignorance of the law is not a defense.” If found guilty, an integrator risks up to five years in jail (18 U.S.C. 2511) and minimum civil sanctions of $10,000 (18 U.S.C. 2520).
“Technology seems to have its own imperative. In AV, there are not as many restrictions as with wiretapping and Internet monitoring,” says Posner. “The law lags behind the technology, but the law can't be ignored.”
Linda Seid Frembes is a magazine journalist and public relations consultant for the professional AV industry. Visit her at www.frembes.com.