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Question - fake cameras
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Dear Ken:
We have been a client of yours (for all of our contracts) for over 15 years and I would like to run something past you:
I live near a lake association who is looking at installing "Warning: Video Surveillance In Use" type signs along private and public roads that go around the lake. They are not really installing any cameras at this time, but want to do it as a deterrent. I cautioned them that this may not be a good idea because it can create a false sense of security, etc. I recall a case study where a woman sued and won based on the fact that she would have acted differently had she known that there was not really video surveillance in use when she was attacked and sexually assaulted.
What are your thoughts & recommendations on this matter?
Thank you in advance for your input.
Chris
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Response
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This is an interesting twist on fake camera placement. As a general rule, creating an expectation and false sense of security can be actionable. However, not all camera placement can be held to create a reasonable expectation of security. Here the cameras are on public and private roads. Can anyone really expect that the cameras are being monitored real time? Cameras that record data that can be viewed after the fact are not going to be of much aid to the person experiencing the emergency or dangerous situation. While catching a perpetrator may provide some gratification and does serve the interests of the public, it does nothing to prevent the crime or situation in the first instance. So unless the placement of these cameras could lead one to believe that real time monitoring is taking place I don't believe there would attach any liability.
Another thought does come to mind. What about insurance companies? If the insurers are told that cameras are in the area they might reduce insurance premiums or even decide to write the insurance because they believe certain risks are reduced. Now it's the insurance carriers who have been mislead in their security expectations. Home owners may not know the cameras are fake and may provide incorrect information to their insurance carriers. Close call if there would be liability. Keep in mind that horrendous facts can result in terrible law. So if the facts of the crime or loss are shocking enough a judge or jury may be inclined to find liability. On the other hand, a loss with less interesting facts may evoke no sympathy and a finding of "no reasonable reliance" on the cameras will result in no liability.
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Texas mom accused of placing camera in locker room
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Ken
I thought the following would be of interest to all:
A North Texas middle school principal and mother has been accused of placing a hidden video camera in a locker room during her daughter's high school basketball game to see how much the coach yelled at the players. The mother
was indicted by a Denton County grand jury last week on two felony charges: improper photography or visual recording, and unlawful interception, use or disclosure of wire, oral or electronic communications - what's commonly known as wiretapping. The improper photography charge carries a punishment of 180 days to two years in a state jail, and the wiretapping charge carries a maximum penalty of 20 years in prison. The mother denies violation any law.
Copies of the video were received by school board members in the mail anonymously and then given to police. Police claim the video recorded the half time and does not show inappropriate images of the girls. They believe it was recorded to capture the basketball coach's actions.
Mitch Reitman
S.I.C. Consulting, Inc.
Fort Worth, TX
817-698-9999
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Response
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You must look to the state law when deciding whether video viewing or recording and audio listening and recording is permitted. Texas has two statutes that apply.
https://www.kirschenbaumesq.com/article/2115-improper-photography-or-visual-recording
Thus the video [single photo or video stream] has to
(1) photographs or by videotape or other electronic means visually records another:
(A) without the other person's consent; and
(B) with intent to arouse or gratify the sexual desire of any person;
For audio interception: see https://www.kirschenbaumesq.com/article/1602-2006-unlawful-interception-use-or-disclosure-of-wire-oral-or-electronic-communications
Texas is a one party state, so only one party needs to give consent to another listening in or recording a conversation.
It seems that the video was not intended to arouse or gratify, and the audio may have been with the daughter's consent if she was part of the conversation. Should be interesting to see how this one plays out and hopefully Mitch or someone in Texas will keep us posted.
Keep in mind that your state may have different laws and you should check them out at https://www.kirschenbaumesq.com/page/alarm-law-issues
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comment on cameras facing open apartment doors
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Ken
It may not be possible to install camera in apartment building hallway to cover the hallway and not having at least some apartment doors in view. When you have tenants you need to watch not causing damage or leaving garbage, getting signed consent may be hard. Besides, tenants change over time. Isn't description of privacy defined as "BEHIND CLOSED DOOR"? Once you open your door the expectation of privacy ends.
Dusan
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