KEN KIRSCHENBAUM, ESQ
ALARM - SECURITY INDUSTRY LEGAL EMAIL NEWSLETTER / THE ALARM EXCHANGE
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audio video signs - do you need to post signs - is there implied consent
July 26,  2017
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audio video signs - do you need to post signs - is there impled consent 
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Ken:
    I have been asked the question about what the requirements are for posting when there is video and audio being recorded in a public space several times over the past couple weeks. There are several places online that provide some helpful information but much of is pertains to a conversation or a telephone conversation as opposed to a public area with multiple conversations, etc. Can you shed any light on this?   I would like to have something concrete to go by for our people and our clients that makes sense as far as best business practices for all parties.
RHM
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Response
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    Posting signs.  Do you need to for video?  Do you need to for audio? Since you are the one selling the video and audio equipment and perhaps providing the platform for recording, storing and retrieving the data, what do you tell your subscriber?
    Since you mentioned some "on-line" sources I decided to take a quick look before starting my response.  Indeed one CCTV website stated that be sure to post signs and then you'll be protected because if people stay on the premises after that they have consented to the video and audio recording.

    So let me put it another way so there is no more confusion:

    I could be wrong.  So if you or your lawyer thinks I'm wrong then please send us all the statute you or the attorney relies on.  I'll be happy to post it.  
    Actually the audio laws are less confusing.  You are either in a one party or all party state.  You can check your state here.    Once you satisfy the one or all party consent you are able to mechanically intercept and record the conversation.  How many calls do you make where you hear, "this call may be recorded for quality assurance ....."  Who came up with this terrific idea?  If you're in an all-party state do you think that staying on the call after that recording means you've consented to the recording?  I don't, especially if the recording doesn't suggest that you hang up. Because some calls are the only way to communicate with the party, such as your bank, credit card company, customer service just about anywhere, etc., it's not much of an option to hang up.  A better option would be to permit you to call back on an unrecorded line.  While this suggestion may make sense, that doesn't mean it solves the legal issue of consent.  Consent would require the recording to say: "This call is recorded and if you consent to the recording then press 1, if you don't consent do nothing or press 2 and this call will be disconnected [and you can then write to us] or you can call back on our unrecorded line at number ....."  
    Video is another issue.  Some states do not permit capturing the video of another without their consent.  Again, signs mean nothing and do not constitute consent.  Other states, probably most, permit capturing video in any public area where there is no expectation of privacy.  So you can video in Central Park on the Great Lawn but you can't video in the public bathrooms.  
    The next issue, and perhaps the most important, is what are you doing with the data, video or audio.  You cannot use it for commercial purposes without express consent to use it for that purpose.  That means you can't put it on your website or make a commercial using the date.  You can't use it for illegal purposes, such as blackmail.  If the data is obtained illegally then you can't use it for anything.  If you inadvertently record a crime you can turn it into the District Attorney's office [and hope they don't arrest you, because that might be the easier case].  One court permitted the illegal audio recording when a step father was abusing the father's children.  That was a judicially carved out exception.
    The violation of the surveillance and audio laws involve other laws, such as Civil Rights laws.         Penalties can be civil damages but can also be criminal prosecution.
    So what's your role?  You sell and install the equipment.  You don't give legal advice.  The Standard Form Agreements specifically advises the subscriber to use the equipment lawfully; it doesn't tell the subscriber what the law is or isn't, and neither should you.  Let them check the Internet. 
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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
516 747 6700
www.KirschenbaumEsq.com