Video Surveillance Law

Thirteen states prohibit camera installation in private areas, defined as areas in which people have an expectation of privacy. This expectation is a legal one. The following places are protected in many states:

  • Private homes

  • Public and private bathrooms

  • Public changing rooms

  • Hotel rooms

  • Rental homes and apartments

  • Bedrooms

  • There are some exceptions. For example, you have an expectation of privacy in your own home, but if you leave your drapes open, you shouldn't expect that no one will look in. You have no legal expectation in this case. Neither do you have an expectation that you won't be filmed — if the person filming is standing where it's legal for her to stand, such as on the street or sidewalk. If she's on your property, she's trespassing and the expectation stands.

    PIs have climbed on trash cans or up trees and ladders on private property in order to film inside an open window. This is illegal; film obtained this way is “fruit of the poisonous tree.” This means that the fruits of your investigation — the video recording — is poisoned by the manner in which it was obtained and, therefore, is inadmissible in court.

    The thirteen states that prohibit cameras in areas where there's an expectation of privacy are:

  • Alabama

  • Arkansas

  • California

  • Delaware

  • Georgia

  • Hawaii

  • Kansas

  • Maine

  • Michigan

  • Minnesota

  • New Hampshire

  • South Dakota

  • Utah

  • Laws in these states expressly prohibit the use or installation of anything that observes, photographs, or eavesdrops on the behavior or conversation of others without their knowledge or permission. Eleven of these thirteen states — all but Arkansas and California — also have laws prohibiting trespassing on private property in order to conduct surveillance; in almost all listed states, violation of these laws is a felony. Laws change, so check your state's laws to be sure.

    Labor Unions

    Employees and labor unions aren't as excited about covert cameras as are employers. They argue that any surveillance is an invasion of privacy. Of course, the companies argue that an employee has no expectation of privacy in the workplace — except bathrooms and changing areas. In 2005, American Management Association, along with The E-Policy Institute, conducted a survey. This survey, the 2005 Electronic Monitoring and Surveillance Survey, found that 51 percent of all employers use hidden cameras to monitor employees.

    You can follow all state and local laws and still be in breach of union labor law. To protect yourself and your client, have a knowledgeable attorney sign off on hidden camera installations where unions are involved. No other federal law or statute prohibits the use of hidden cameras in work-places, however.

    If you install cameras and your client is involved with a union in any way, advise him to consult a competent attorney before choosing hidden cameras. The National Labor Relations Board (NLRB) has allowed hidden cameras to be installed in the workplace if the company bargains with the union before the cameras are put in place. They've also established that the camera locations don't have to be disclosed.

    In 1998, Anheuser-Busch installed hidden cameras that revealed employees smoking pot, sleeping on the job, and urinating on the roof. Anheuser-Busch fired the employees who smoked pot, suspended seven others, and provided last chance warnings to the rest of the violators. Because the union, Brewers and Maltsters Local No. 6, wasn't informed of Anheuser-Busch's intention to install cameras, the NLRB and the federal appeals court found the company engaged in unfair labor practice and were in breach of federal labor laws. Read the article in Entrepreneur.com: www.entrepreneur.com/tradejournals/article/134510370.html. This site also has excellent advice about bargaining with unions for the use of cameras and what to do if cameras are already in place without permission.

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