When it comes to surveillance, there is a fine line between privacy and public safety. Because of this, surveillance laws are often scrutinized by both sides. A new bill was introduced at the end of 2016 which requires any local law enforcement agency in California that uses surveillance technology to submit a plan to local officials on how it uses equipment and information collected. This would need to include surveillance plans for any facial recognition software, drones, and even social media monitoring, and would be presented at an open hearing.
While this disclosure from law enforcement may put some worries at ease, others may want more. Privacy advocates believe that this is still not enough to cover spying equipment and technology that is continuing to evolve and expand. On the other side, law enforcement officials argue that creating plans and policies for each device may be unfeasible and interfere with investigations.
But state Senator Jerry Hill (D-San Mateo) says that it was introduced “to create transparency and a check and balance.” Without regulations on these devices and technology, they can easily be abused and infringe on our privacy rights.
With fairly comprehensive digital privacy laws, California has been actively working toward disclosure when it comes to law enforcement surveillance. State laws require a probable cause warrant for access to digital content and devices (ex. cell phones) and law enforcement must catalog information and make it publicly available.
The new bill gives agencies until July 1, 2018 to draft policies detailing all the types of surveillance technology used and the authorized reasons for using them, along with the types of data collected, who can access them, and a description of their training. It also prohibits an agency from acquiring new technology unless approved by local officials at a regularly scheduled public meeting.
Last year, two surveillance laws went into effect, one of which requires to draft and publicly post privacy and usage policies for operating automated license-plate recognition software. The other requires the same for the use of cell-site simulators (“Stingrays” or “Dirtboxes”). These are powerful tracking devices that function as fake cellphone towers to collect information. However, their ability to collect information from innocent people not under investigation has sparked outrage and court battles.
Despite current surveillance laws, privacy advocates believe that not all agencies are complying and that not enough is being done to ensure that they do. To evade the disclosure requirements, agencies could borrow technology from other federal agencies, which is not subject to state law.
In an effort to check compliance, the Electronic Frontier Foundation and other nonprofits and watchdog groups searched through numerous California government websites to make sure surveillance policies were posted. While many were easily located, policies for at least 90 agencies (which, based on public records, were believed to use surveillance technology) could not be found. Since this task in April 2016, more agencies have posted their policies online.
While the new bill is meant to be inclusive and comprehensive, concerns remain. Some worry that criminals may figure out how they are being tracked, others bring up issues of time sensitivity when it comes to buying or borrowing new technology, and privacy advocates are still skeptical about the cost, risks, and enforcement.
There are obviously mixed feelings about this new bill, and other surveillance laws. What are your views? Share your thoughts and opinions with us on Facebook, Google+, Twitter, LinkedIn, and Pinterest.
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When you decide to install home security cameras, where you place your cameras and how you use your footage is important to consider. For maximum protection, it is recommended to monitor common areas as well as possible points of entrance. While home surveillance is not banned, there are a few things to keep in mind to avoid breaking the law.
Home Surveillance Concerns
Within your home, you do have the right to record without informing others, but there are very large exceptions to this rule. First, any area where a “reasonable expectation of privacy” is assumed is off limits. For example, if your home security cameras are monitoring your front yard and possibly the sidewalk and street, your expectation of privacy in these areas is low. On the other hand, bathrooms and bedrooms, where you may be in a state of undress, have a high expectation of privacy, and, thus, are prohibited.
Second, if your cameras enable audio recording, you may want to brush up on wiretapping laws. While these vary slightly from state to state, federal statutes allow audio recording so long as one of the two parties consents. This basically means that you, as the recorder, may know and give consent without informing the other party. However, some states, including California, require dual consent, meaning both parties must be aware and agree to be recorded.
In regards to recording burglars, any trespassers forfeit any expectation of privacy in your home. You may record the person, submit the footage to police, and use your video in court.
For cameras that run non-stop and record audio, you will want to warn any person that is allowed access to your home that these cameras are there and running, otherwise you may run the risk of breaking wiretapping laws. These people include family members, guests/visitors, delivery persons or installers.
The Consent Conundrum
You may now be wondering how you can lawfully gain dual consent. Will verbal consent or a surveillance sticker in the window suffice, or should you have every guest fill out a consent form upon entering? Unfortunately, consent for audio recordings must be given in written form. It is a common misconception that window decals or yard signs are sufficient means to gain consent, as it is expected for visitors to see and recognize them.
However, in a home setting, there may be an exception to the rule. With home cameras, it boils down to what you do, or intend to do, with your recordings. If you don’t do anything with the recording, it is likely that no one will know or care – no harm, no foul.
If you do something with the recording, things change. For example, say a celebrity is a guest in your home and now you have footage of this celebrity hanging out in your home. While selling this footage to a gossip magazine for profit may seem enticing, you will be breaking the law. First, consent was never given from this celebrity. Second, you cannot use a recording for commercial gain without the subject’s consent.
In regards to wiretapping, a possible solution is to simply turn off audio recording if your devices permit. However, why turn off a service that you have paid for? While thieves are usually fairly quiet while they work, using audio recording for eavesdropping may be beneficial (but puts forth yet another ethical dilemma).
Uses For Recordings
Let’s say you record someone in your home plotting a crime, or admitting to committing a crime. Most states allow you to use the recording to prevent a crime or prove that one was committed.
However, if the recording does not involve a crime and you decide to post it on YouTube or a social media site, you could be engaging in illegal activity. Using a recording for exploitive or commercial purposes (as in the previous celebrity example) may be misappropriation if not all parties consent. As a reminder, laws vary from state to state so please look into your own state’s laws.
Also, even within your own home, recording with the intention of blackmail is illegal.
Law enforcement has the right to ask for your home surveillance if they suspect illegal activity, and a warrant will likely be necessary. However, since most recordings are stored in the cloud, they may be able to go straight to the provider and obtain the footage, bypassing your permission to access.
What Should You Do?
To err on the side of caution, be sure that everyone entering your home is aware that the cameras are there, and avoid placing them in areas where privacy is expected. If you wish to withhold the information, so long as you do not do anything with the footage, you should be fine.
However, there are other reasons to be careful with the privacy of your security cameras. While you may not have the intention to do bad things, hackers may be able to access your cameras and broadcast your feed. To protect yourself and your guests, it is advised to take reasonable security precautions (ex. strong passwords, maintain security Wi-Fi network), and take the ethical high road when using new technology.
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Security cameras are a great way to keep an eye on your property or business. You can use them to look after your loved ones, protect your inventory, or deter intruders all together. As appealing as security camera systems are, it is wise to know and understand your local surveillance laws.
Before you invest in your own security cameras, please review these general guidelines. Remember, these are not meant to apply to your specific situation. Instead, they are meant to give you a general idea of what is and is not allowed. If you have any further questions regarding filming restrictions and such, please contact a local attorney or research laws within your city and state.
Camera placement is important because you want to capture high traffic areas, such as entrances and back doors. If you direct your camera at an insignificant area, you will waste time and money while defeating the purpose of your security system.
Placement is also important because there are areas that are off limits, including restrooms, other people’s homes, dressing rooms and locker rooms. Basically anywhere that there is an expectation of privacy, or you are likely to be in a state of undress, is off limits.
If you are unsure whether or not you are violating someone’s right to privacy, err on the side of caution and always consult a lawyer.
If you own a retail business, you may worry that customers might be committing crimes in blind spots such as dressing rooms, locker rooms, or restrooms. While legally you cannot monitor these areas, you can monitor the entrances/exits. Be sure that when the door opens, your camera does not get any glimpse of what’s behind that door, otherwise you could get into trouble. If a person goes into a restroom or dressing room with some inventory, and then exits without it that is a suggestion of a crime.
Areas that are viewable to the public are generally legal to film. This is how Google is able to provide the 360-degree street view for Google Maps. However, it is ill-advised to point your security cameras at your neighbor’s home. Whatever situation that warranted your desire or need to film your neighbor’s home could become escalated. Whether you are the one filming or the one being filmed, you may want to first speak with your neighbor about camera placement.
With audio recording, Federal Law only requires one person to know about the recording taking place. State laws will provide different regulations. Remember that federal law creates a baseline for laws. That is, state laws cannot allow for any less than one informed party.
Audio is not allowed to be obtained through eavesdropping or remote recording. Because at least one of the parties must know of the recording, you are not permitted to record conversations you are not a part of since you do not count as one of the parties. Even if the conversation is taking place in a public area, the parties can still expect privacy which protects them from eavesdroppers. In the same vein, you cannot leave your unattended recorder somewhere and use the recordings as evidence.
The easiest way to get around audio recording rules is to make the party aware that they are being recorded. For example, often times when you call a customer service line, you will likely hear, “This call may be recorded…” Continuing the conversation after this notification is usually viewed as consent. Thus, once you have informed someone that a room is being monitored by audio surveillance, they have the choice to continue their conversation in that room or move the discussion to a different room.
You may also record a person so long as you don’t intend on using the recording for illegal acts. Because one party is aware of the recording, the act of recording is not illegal. However, if your recording contains private information that is covered by the common law privacy, you may get into some hot water. The private information could be things like medical history (ex. miscarriage, abortion) so be sure to understand what is and is not covered.
The Constitution & Surveillance
The Fourth Amendment protects citizens from “…unreasonable searches and seizures…” and details the rights of privacy. While you may think that some public security cameras would count as unreasonable, the case of Delaware v. Prouse will tell you otherwise. In this case, the Supreme Court stated that “people are not shorn of all Fourth Amendment protection when they step from their homes onto the public sidewalks”.
As far as the First Amendment goes, there has not been any critique on a camera’s existence suppressing behavior. In fact, in the Laird v. Tatum case, the court found that government surveillance of anti-war protesters did not hinder their freedom of expression. This can help security camera owners when there are accusations of civil liberty violations.
The First Amendment also gives you the right to document civil servants as they are performing their civic duties. The recordings are simply viewed as a way of exercising your rights. Officers may ask you to stop recording and ask for the evidence, however, you do not have to submit to their requests unless they have a warrant for your property.
The only instance in which you may be violating the law is if you are interfering with an investigation. This is often used to remove reporters from a crime scene, but your personal security camera should not interfere with the investigation. In fact, your video surveillance may be of use for the investigation.
If you ever wondered why most security cameras do not have microphones, it is because, in some cases, you may need dual consent to record audio. Violating dual consent is a felony. Your best bet is to get consent to be taped before recording, and then again as the first order of business when the recording begins. Off tape and on record consent will cover your bases if you are sued for violating wiretap laws. And although it is deemed “dual consent”, you must get the express consent of everyone being recorded.
The following states may have variations on the law and should be further researched: California, Connecticut, Florida, Hawaii, Illinois, Maryland, Massachusetts, Nevada, New Hampshire, Pennsylvania, and Washington.
The employer must have a legitimate reason for recording. The off limits areas include restrooms, locker rooms, and dressing rooms. There may also be restrictions in the break room. Again, you cannot record any place in which a person should expect privacy. However, anywhere that an employee interacts with a customer can be monitored. For example, the sales floor is fair game, but a personal office may not be. You will need to use your best judgment or consult an attorney. Disclosing the use of surveillance equipment to your workers will cover your bases for any illegal wiretapping issues.
The biggest restriction for recording employees is in regards to unions. An employer may not record union activities such as meetings or even discussions about union business. And surveillance cannot be used to intimidate current or prospective members of the union.
Evidence for Trial
When you submit any type of recording to a court of law, the evidence is put on trial. The validity and handling of this evidence is then scrutinized. You, as the recorder, must prove that the evidence was in no way doctored. You must go through the steps of how the footage was obtained (ex. how the video was recorded, where the camera was located, the quality of the camera at different times of day, how it was stored, etc.), and verify the whereabouts of the evidence as it was transported to court. When the footage is not in court, it must be securely stored. The integrity of your recording may be compromised if there is any data loss due to a power surge or data dump.
With this information, you should be able to make informed decisions when it comes to your security camera system. If you have any tips to share, please connect with us on Facebook, Google+, Twitter, LinkedIn, and Pinterest.
For a great selection of quality security cameras, full CCTV surveillance packages, and more, please visit us online at SecurityCamExpert.com. To learn more about our installation and services, or to schedule a site survey, please call 1-888-203-6294.