WASHINGTON, January 15, 2017 — It seems everywhere you go, video cameras are at work, capturing images of you and your activities. The concept of a monolithic government that is always watching us, termed “Big Brother” by George Orwell in his novel “Nineteen Eighty-Four,” has clearly been superseded in this century.
Today, even the kid walking down the street policing the neighborhood can be counted as one of those doing the watching. We never know who is going to catch us in the act. One thing is certain however. The act is almost certainly being captured on film.
The law regarding surveillance can be addressed as it exists in three distinct areas: the home, public places, and the workplace.
In general, hidden surveillance cameras may be installed in the home for the purposes of safety or home security. These cameras may be hidden. No signs warning that a security camera or cameras are present are required. The same is true for the popular “nanny cams” that many use to monitor the conduct of babysitters.
Homeowners may want to install a camera to identify a burglar in the event of a break-in. Concerns about cleaning people or other in-home employees are also, unfortunately, legitimate reasons for installing cameras.
There may be other security issues as well. Perhaps a restraining order is in place, prohibiting an ex from being on the premises. Additionally, cameras are often placed to give parents peace of mind about the well-being of their children when the parents are at work or out of town. Similarly, cameras can be used to assure that elderly parents or grandparents are getting proper care.
The film capturing apparently lawless individuals and events may be used in court to prosecute anyone caught in your home breaking the law. However, some states prohibit the use of video that also captures audio.
It is illegal to record someone with malicious intent or for the purposes of blackmail. It is also illegal to take video surveillance of someone in a place of “expected privacy,” where such surveillance will violate specific privacy laws. In the home, these places may include bedrooms, bathrooms, dressing rooms, changing rooms and showers.
The concept of “reasonable expectation of privacy” applies in general to the placement of hidden cameras in public places. It is illegal to record video in hotel rooms, restrooms, changing rooms, locker rooms and other private areas.
However, cameras are allowed in parks, shopping malls, city streets, inside retail stores, restaurants, and other places of business. This is why Google is allowed to photograph their 360-degree street views as seen on Google Maps.
Many civil lawsuits and criminal prosecutions are won or lost based on footage from cameras that have recorded scenes of accidents or alleged crimes.
You can point a camera that is on your property at your neighbor’s property. But while this is legal, it may not be a wise thing to do as it might result in a bad relationship or escalate an already tenuous one.
It is absolutely legal to record police while they are conducting an investigation. This is a First Amendment constitutional right. Citizens have the right to document civil servants as they are performing their civic duties. In Gilk v. Cunniffe the U.S. Supreme Court ruled that “recording governmental officers engaged in public duties is a form of speech through which private individuals may gather and disseminate information of public concern, including the conduct of law enforcement officers.”
Police officers can ask individuals to turn their recording devices off, and they can ask for the tape or film or card involved. On the other hand, there is no requirement or law requiring compliance with either request unless the police have a warrant. The exception, of course, is if the filming is interfering with an investigation. This is often the excuse police use to remove reporters from crime scenes.
There is a major distinction between audio and video recordings. Many states require dual consent, that is, permission from the individual being recorded, before audio recording is allowed. Violation of this dual consent law may subject the recorder to a felony prosecution.
A survey conducted in 2007 by the American Management Association found that 55 percent of employers employed video monitoring. Clearly, that percentage has increased since then.
Cameras are often placed in plain view in workplaces for the purpose of deterrence. The cameras can help catch thieves or shoplifters and can also provide evidence of dangerous or illegal activities. Video recordings may also be used to monitor work performance and may be used as part of disciplinary measures.
The “reasonable expectation of privacy” provision applies in the workplace as detailed above. An employee working on the sales floor interacting with customers would not reasonably expect privacy. On the other hand, an employee, while in his or her own office, most likely would expect privacy.
Notice and warning are significant concepts in workplace video surveillance. Employers who establish a written policy and advise employees of the existence of cameras will often defeat invasion of privacy claims and employees are less likely to have any such privacy claim if they have been warned.
Laws are clear about unions. An employer cannot record union activities, union meetings or in any manner to intimidate members or prospective members.
Defining what is reasonable is always a question for a judge or a jury. Trying to guess what someone considers offensive or what may be a privacy violation is very difficult. Courts have found that employees can have reasonable expectations of privacy in shared and open workspaces. A California case, Sanders v. American Broadcasting Companies, Inc., held that a journalist’s secret video recording of an employee in a low-walled, open cubicle workspace where conversations could be easily overheard, constituted an invasion of privacy.
Generally, workplace cameras should not be hidden, and employees should be advised of their existence. There are limited instances, however, when hidden cameras will be allowed. An employer may need to place a secret camera to uncover suspected employee misconduct or criminal activity such as theft or misappropriation of company proprietary information. In these instances, secret recordings should be limited in duration and scope, and should actively avoid infringing on employee privacy any more than is necessary.
Know that you are being watched. Act accordingly.
Paul A. Samakow is an attorney licensed in Maryland and Virginia, and has been practicing since 1980. He represents injury victims and routinely battles insurance companies and big businesses that will not accept full responsibility for the harms and losses they cause. He can be reached at any time by calling 1-866-SAMAKOW (1-866-726-2569), via email, or through his website.
His book “The 8 Critical Things Your Auto Accident Attorney Won’t Tell You” can be instantly downloaded, for free, on his website: http://www.samakowlaw.com/book.
Samakow has now also started a small business consulting firm. His new book “Step By Step, Achieve Small Business Success” is available at www.thebusinessanswer.com.