Seemingly everywhere you go video cameras are capturing you and your activities. The concept of the government watching us, termed “Big Brother,” by George Orwell in his novel Nineteen Eighty-Four, has clearly been surpassed and now, 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 most certainly being captured on film.

The law regarding surveillance can be addressed in three distinct areas: the home, public places, and the workplace.

The Home

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 of “security camera” are required. This includes 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: perhaps there is a restraining order in place prohibiting an ex from being on the premises. Cameras are also often placed to give parents peace of mind about the wellbeing 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 captured may be able to be used in court to prosecute anyone caught in your home breaking the law. 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 the surveillance will violate specific privacy laws. In the home, these places may include bedrooms, bathrooms, dressing rooms, changing rooms and showers.

Public Places

The concept of “reasonable expectation of privacy” applies 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.

Cameras are allowed however 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. While legal, this may not be a wise thing to do as it might create 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. The Supreme Court ruled in Gilk v. Cunniffe 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 to turn recording devices off, and they can ask for the tape or film or card. 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.

The Workplace

A survey conducted in 2007 by the American Management Association found that 55% of employers used 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 activity.

Video recordings may be used to monitor work performance and may be used as part of disciplinary measures.

The “reasonable expectation of privacy” 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 their 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.

What is reasonable is always a question for a judge or a jury. Trying to guess what someone considers offensive or 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.

Conclusion

Know that you are being watched. Act accordingly.

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