KEN KIRSCHENBAUM, ESQ
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Do you need signs to do video in NJ

July 26, 2021
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Do you need signs to do video in NJ 
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Ken
            I need a security expert to answer a question regarding security camera installation. One lawyer says that when cams are installed in a business in NJ, a notice must be posted on the entrance to the business in order to use the recordings in a legal matter. A different source claims no signs are needed. What is the correct answer?
 Thank you
Tom 
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Response
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            Well, good question and lucky that the great minds of the NJ Legislature have come up with a clear and concise answer.  Seems it's illegal to video the "intimate" parts of someone's body or when a person would know that another may expose intimate parts or may engage in sexual penetration or sexual contact.  This is NJ so I am not sure they are limiting that to person to person or what. 
            But it also seems that an exception has been made to video of "access way, foyer or entrance to a fitting room or dressing room provided that the establishment posts a conspicuous notice at the entrance of such rooms informing the public of the surveillance activity."  Apparently stores with fitting rooms have a lot of clout in NJ. 
            My advice has consistently been that posting signs when you are videoing or recording audio is not necessary and in fact not helpful if the activity is illegal.  There were no statutes requiring signage at the time that I knew of, other than a law requiring NYC nightclubs to post a sign at the entrance and exit doors, I suppose to keep track of the homeless congregating around the doors.  The reasoning was that signs don't mean a thing to someone who is blind, can't read English or whatever language the sign is in or can't read at all.  Unless a sign is specifically required by statute I still maintain that the posting of a sign will not excuse compliance with the video and audio laws. 
            To answer your question directly, unless you are talking about a dressing room entrance, no sign is needed.
            Here is how NJ law confuses the issue.  Here is the law creating the exception:
            " ... actor conspicuously posts at the entrance to the fitting room or dressing room prior notice of his intent to make the observations, photographs, films, videotapes, recordings or other reproductions."
            What's conspicuously?  What a judge says it is.
            In what language?          What a judge says it should be
           Where at the entrance and how big the sign?  Whatever a judge decides
            How do we accommodate the blind?  Do we need a video display with sign-language?
            How about an audio with different languages?
            If the sign is posted can we video sexual acts or intimate parts?  Which ones? 
            Bottom line:  It is not illegal for retail establishments to observe, photograph, film, videotape, record or otherwise reproduce the image of persons in the access way, foyer or entrance to a fitting room or dressing room provided that the establishment posts a conspicuous notice at the entrance of such rooms informing the public of the surveillance activity. N.J. Stat. Ann. §2C:14‐9(1)(e)(1). However, it is illegal to carry out surveillance activities inside a private dressing stall of a fitting room or dressing room. . N.J. Stat. Ann. §2C:14‐9(1)(f)
            I look forward to the wise decisions from the courts on this one.  Here is the statute:
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2013 New Jersey Revised Statutes
Title 2C - THE NEW JERSEY CODE OF CRIMINAL JUSTICE
Section 2C:14-9 - Invasion of privacy, degree of crime; defenses, privileges
 Universal Citation: NJ Rev Stat § 2C:14-9 (2013)
 
2C:14-9. Invasion of privacy, degree of crime; defenses, privileges
1. a. An actor commits a crime of the fourth degree if, knowing that he is not licensed or privileged to do so, and under circumstances in which a reasonable person would know that another may expose intimate parts or may engage in sexual penetration or sexual contact, he observes another person without that person's consent and under circumstances in which a reasonable person would not expect to be observed.
 
b. An actor commits a crime of the third degree if, knowing that he is not licensed or privileged to do so, he photographs, films, videotapes, records, or otherwise reproduces in any manner, the image of another person whose intimate parts are exposed or who is engaged in an act of sexual penetration or sexual contact, without that person's consent and under circumstances in which a reasonable person would not expect to be observed.
 
c. An actor commits a crime of the third degree if, knowing that he is not licensed or privileged to do so, he discloses any photograph, film, videotape, recording or any other reproduction of the image of another person whose intimate parts are exposed or who is engaged in an act of sexual penetration or sexual contact, unless that person has consented to such disclosure. For purposes of this subsection, "disclose" means sell, manufacture, give, provide, lend, trade, mail, deliver, transfer, publish, distribute, circulate, disseminate, present, exhibit, advertise or offer. Notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, a fine not to exceed $30,000 may be imposed for a violation of this subsection.
 
d. It is an affirmative defense to a crime under this section that:
 
(1)the actor posted or otherwise provided prior notice to the person of the actor's intent to engage in the conduct specified in subsection a., b., or c., and
 
(2)the actor acted with a lawful purpose.
 
e. (1) It shall not be a violation of subsection a. or b. to observe another person in the access way, foyer or entrance to a fitting room or dressing room operated by a retail establishment or to photograph, film, videotape, record or otherwise reproduce the image of such person, if the actor conspicuously posts at the entrance to the fitting room or dressing room prior notice of his intent to make the observations, photographs, films, videotapes, recordings or other reproductions.
 
(2)It shall be a violation of subsection c. to disclose in any manner any such photograph, film, videotape or recording of another person using a fitting room or dressing room except under the following circumstances:
 
(a)to law enforcement officers in connection with a criminal prosecution;
 
(b)pursuant to subpoena or court order for use in a legal proceeding; or
 
(c)to a co-worker, manager or supervisor acting within the scope of his employment.
 
f.It shall be a violation of subsection a. or b. to observe another person in a private dressing stall of a fitting room or dressing room operated by a retail establishment or to photograph, film, videotape, record or otherwise reproduce the image of another person in a private dressing stall of a fitting room or dressing room.
 
g.For purposes of this act, a law enforcement officer, or a corrections officer or guard in a correctional facility or jail, who is engaged in the official performance of his duties shall be deemed to be licensed or privileged to make and to disclose observations, photographs, films, videotapes, recordings or any other reproductions.
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Ken Kirschenbaum,Esq
Kirschenbaum & Kirschenbaum PC
Attorneys at Law
200 Garden City Plaza
Garden City, NY 11530
516 747 6700 x 301
ken@kirschenbaumesq.com
www.KirschenbaumEsq.com