Legal Brief: Beware of the Hidden Camera

The following story is based on real events, and it resulted in a real lawsuit. The names have been changed to protect their anonymity.

John and Susie, a young married couple, were excited for vacation. They rented a summer house near the beach. They unpacked, changed into swimsuits, and delighted in the great deal they got for this rental. They spent the day at the house, the beach and then settled into bed.

The next day, while Susie was getting dressed, her arm inadvertently brushed up against a fern in the master bedroom. She thought nothing of it at first, but then noticed something hidden behind the fern. It was a camera. A surveillance camera – pointed right at the bed!

Susie’s mind raced. She wondered whether the camera was connected and to what or whom. She retraced her and John’s activities in that bedroom. Talking, changing clothes, showering...other things that married couples do. Her heart sank.

Indeed, the camera was connected and viewable by the owner – whose primary residence was several states away. What did he see? Was he merely trying to monitor his rental property? Did he intentionally obscure the camera behind the fern? Was this malicious?

John and Susie sued the homeowner for invasion of privacy (among other claims). In particular, they asserted that the homeowner recorded and/or live streamed video from the master bedroom of the rental home for his own nefarious purposes.

When is it Illegal to Monitor?

The law grants the homeowner every right to monitor his rental property. He had every right to use cameras; however, he did not have the right to place a camera in an area where people have a reasonable expectation of privacy – especially hidden in a fern.

It is illegal to record or surveil someone with malicious intent or for the purposes of blackmail. It is also illegal to take video surveillance of someone in a place where they have a reasonable expectation of privacy. These places include bedrooms, bathrooms, dressing rooms, changing rooms and showers. In contrast, individuals in public places ordinarily possess no reasonable expectation of privacy and, therefore, can be recorded.

In a world of wireless devices and self-installations, the placement of equipment is increasingly in the control of customers. Sometimes the customer chooses the location of cameras; other times, the customer specifically directs a professional installer or integrator to place it in a specific location. Sometimes a wireless camera is moved by the customer after the professional installer has left the facility.

As John and Susie learned, this is an area ripe for abuse. Security companies should not enable their customers to violate the privacy rights of others; instead, they should adopt a series of policies and practices with respect to the installation and use of security cameras.

7 Ways to Protect Your Company

The balance between security and privacy will always be a challenge for both end-users and security integrators. As technology evolves, this challenge is likely to increase. Here are a few general recommendations to avoid liability as the security integrator:

1. Every security company should have a written contract which specifies, among other things, that any cameras supplied and/or installed by the company are for the safety and security of the residents, invitees, and other persons on the subscriber’s premises, and not for any other reason.

2. The written contract should also specify that the company will not install cameras in areas where people have a reasonable expectation of privacy, such as bedrooms and bathrooms or in the direction of nearby neighboring properties.

3. The written contract should specify that the subscriber is solely responsible for the content of any video captured by cameras.

4. The company should train its personnel on the proper installation and placement of security cameras.

5. The company should adopt a written policy restricting installation and placement of security cameras.

6. For all professional installations, the company should attach to its written contract an addendum which specifies the location of each item of equipment installed, including, of course, the location of each camera. This addendum can be useful for many reasons. In this context, it creates an admissible business record that can be used later – if litigation results – to show that the camera was initially installed in a suitable location. If the camera is moved after the initial installation, the subscriber should bear all risks and liabilities.

7. For all self-installations, the equipment should be accompanied by an express warning that any cameras supplied are not to be used to violate the privacy of others.

We cannot always know when we are being recorded or where someone has placed a camera. For John and Susie, they learned a difficult lesson – that privacy is not guaranteed…and that you should always check behind the ferns.

Timothy J. Pastore, Esq., is a Partner in the New York office of Montgomery McCracken Walker & Rhoads LLP (www.mmwr.com), where he is Vice-Chair of the Litigation Department. Before entering private practice, Mr. Pastore was an officer and Judge Advocate General (JAG) in the U.S. Air Force and a Special Assistant U.S. Attorney with the U.S. Department of Justice. Reach him at (212) 551-7707 or by e-mail at [email protected].