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Still more on bathroom cameras
March 6, 2021
Still more on bathroom cameras
          Thank you for the many informative topics you cover and for the chuckles you provide when you lay into someone.  I hope that’s not about to happen to me…
          I’ve seen the recent e-mails about cameras in washrooms.  We currently have a request for such a setup.  Although I don’t have all the details yet, I believe it’s for a drug testing situation and that the client is not looking to record video but have live view only.  Should we be awarded the work, we will consult the local police to ask if providing the system to this client for the purpose in question would put us in violation of any laws.  Here’s where you’re going to want to lay into me about using a lawyer…  We would then draft some kind of indemnification waiver for the client to sign. 
          Do you know if exceptions tend to exist for this type of application?  I’m in Ontario, Canada so I realize things may be a bit different for us but was curious about your knowledge and experience in such settings.
Kevin B
          This is great example that everything really needs to be in context.  Certainly there are hard core lines which should not be crossed, rules that can never be broken, but, for every rule there is probably an exception. 
          Bathrooms are universally considered an area where privacy is expected.  One does not expect to be spied on in a bathroom.  Audio and video interception and recording have no place in the bathroom.
          I was about to use a nursing home or hospital bathroom as an example where monitoring may be necessary, but even in those that I have seen there is, at most, a pull cord for emergency notification.  That is really not enough in some circumstances.  Some patients may need to be under surveillance at all times, even in the bathroom.
          That brings us to the drug testing clinic.  While we all have been asked for urine samples at our doctor’s office and offered a private bathroom, privacy may actually defeat the purpose of drug testing.  I suppose someone could be searched before being permitted to go into a private bathroom, but that search would require consent; the same consent that would be required to video someone in the bathroom.
          I propose that there are circumstances where video can be in the bathroom under very limited conditions.  There should be a specific consent form; there should be signs; cameras should be visible; there needs to be no mistake or misunderstanding that there is no privacy in this bathroom, that there can be no expectation of privacy in the bathroom and the person should have the choice not to use the room [even if it’s a Hobson’s Choice – use the room or violate your parole and go to jail without passing Go]. 
          Obviously if a statute specifically prohibits camera in bathrooms and there is no permitted exception, all the reasoning in the world won’t matter.  Even so, most video and audio statutes are directed to the end user, not the installer.  The Standard Form Agreements make that very clear to the subscriber that it’s their obligation to use equipment lawfully, and it’s not your responsibility to lecture them on the laws of privacy.

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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