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liability for releasing video / comment on annoyed at NFPA 72 June 18, 2018

KEN KIRSCHENBAUM, ESQ 
ALARM - SECURITY INDUSTRY LEGAL EMAIL NEWSLETTER / THE ALARM EXCHANGE 
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 liability for releasing video / comment on annoyed at NFPA 72
June 18, 2018
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Liability for releasing video
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Ken,
            Your daily articles are great and I find them very informative. As you know we have always used your contracts and have been your client for almost 40 years now. My question for you is, what our company exposure is if we release video to someone other than the client or law enforcement.
            We have a client with 32 apartment buildings in Brooklyn at which we provide video surveillance on all the interior floors and the building exterior. From time to time we get requests from our client to search the video history for particular cameras because a package was stolen from the mailbox area. In the past, we would just send him a link to download the video off of our servers, but during the past holiday season, we were asked to send the video directly to the person that had the package stolen.
            My big issue is if we send the video to a party that is not our client, does your All in One contract protect us?   My fear is that the person we send the video will recognize the person taking his package and have some sort of confrontation with the thief resulting in someone getting hurt or worse.   
            Also, if it is ok to send the video to a non-contracted party, is there any statement we should include in our email to the third party when we send them the link to the video.
Sincerely,
Wayne M. Wahrsager
Commercial Fire & Security, Inc.
Freeport, NY
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Response
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            Thanks for the compliment and the great question. 
            The All in One agreements provide that video data is the property of the alarm company.  It seems to me that video data that is captured and recorded lawfully can be used in any lawful manner.  The purpose of recorded video is to be able to retrieve the data to determine, after the fact, what happened.  Unless your video system and services includes subscriber access to a portal to view the recorded video, you control the data and can determine who has access.  Typically this will be your subscriber and law enforcement.  You would also be required to produce the data if served with a lawful subpoena [a subpoena can be issued by a lawyer in a pending case; no judge required - at least in NY]
            You have cameras viewing public areas in the building complex and your subscriber has asked that you release video data in connection with a theft in the mailroom area.  You are concerned that the person you are giving the data to will then breach the peace?  Should you have anticipated that consequence and are you liable to anyone, including but limited to someone who was injured?  I believe you are concerned with a physical assault.  But how about the person you give the data to posts it on social media; the prep is so embarrassed he, or she, assaults someone or commits suicide?  Are you to blame for that too?
            I end where I started.  If the data was lawfully collected it can be delivered for lawful purposes.  Ascertaining who stole the package is a lawful purpose.  I don't see any liability for you.  Of course you can still be sued, but you should prevail.  Also, the All in One agreement will provide you with indemnification from your subscriber, so it will your subscriber who foots the bill for defense and pays any damage award, if it gets that far.  This is the type of claim your E&O carrier would handle as well.
        If you decide to send the video to the "third party" you will indicate that the data is being provided pursuant to request of your subscriber.  You may also want to take a few other prudent steps, not lonly to protect yourself from the release of the data, but to protect yourself from becoming involved after the release.  You should prepare an "agreement" that the third party has to sign that 1) covers your cost to produce the date, 2) covers costs and charges if you have to answer any questions, assist with viewing the data, or authenticating the data, or testifying regarding the data.  You can also demand indemnity from the third party and provide guidelines how the video can and should be used, and conversely, how it should not be used.  By the time you bring me in to write the agreement and you come up with the charges to the third party, you may find out they don't want the data bad enough to pay for it.
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comment on annoyed at NFPA 72
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Ken
            Anonymous appears to be annoyed with the NFPA 72.  I’m not going to go through and list all the requirements for testing and inspection, it’s in chapter 14. 
Yes all devices need to be visually inspected.  If, the property does it want to allow access document that you asked because it is a requirement and the report will show an incomplete inspection.  Clearly state you cannot certify the system is in compliance on the report.  Push it back on to the owner showing they are unwilling to comply with the code, not you. Some will let the AHJ push back (assuming you have to report that or they read the report). If anyone is willing to overlook deficiencies or are willingly being negligent, make sure you are prepared for potential litigation or loss of license.  Better yet just stop doing shoddy work.  If we make it difficult for problem customers to get cheap, poorly executed inspections reports, we advance as an industry.
Yes duct smokes require smoke entry, a manometer can determine if air flow across the sensor is adequate.  That will Not show if the optical sensor is dirty or damaged in a undetected way by the detector.  Same deal with spot detectors, a magnet test proves the alarm circuit is functional, not that the sensor works.
The sudden shutdown caused by a duct detector causing damage to a motor?  All modern AHU/RTU manufacturers have built in provisions for fire alarm/supervisory duct smokes to interface with the system and shut down immediately.  The code requires immediate shutdown, I would not be concerned with the observation of one hvac guy. 
Resi fire alarms- 2013 nfpa 72 29.10  just like this section, I’m sure Ken would avise you follow the manufacturer’s instructions and the code.  Your contract would offer inspections, they don’t want it, not your issue when the insurance company comes looking, call Ken to fend off the vultures.
I’m not being ignorant to the reality that most fire alarms do not get a completely perfect test and inspection despite being documented to the contrary.  It’s not easy dealing with customers that don’t care, don’t want to pay for a compliant test and inspection.  
Yes the codes are making it more and more time consuming and by proxy more costly to the owner.  If we keep undercutting each other on inspections to get the work, as an industry, we are enabling the customers to get away with it.  This increases liability, reduces profits and makes it more difficult to get the next customer to pay for our services fairly.   Sounds like the definition of insanity.
The stakeholders have come together already in regards to this.  If you feel the code is overly burdensome, draconian etc. remember it’s a consensus code- driven by AHJs, insurance companies, manufacturers, alarm companies and engineers (science!).  Get involved and advocate your position.
Chad Putney, CFPS
Solutions Engineer 
NICET  III 
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Response
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Thanks for sharing your expertise.
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comment on annoyed at NFPA 72
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Ken           
            Anonymous appears to be annoyed with the NFPA 72.  I’m not going to go through and list all the requirements for testing and inspection, it’s in chapter 14.  Yes all devices need to be visually inspected.  If, the property does it want to allow access document that you asked because it is a requirement and the report will show an incomplete inspection.  Clearly state you cannot certify the system is in compliance on the report.  Push it back on to the owner showing they are unwilling to comply with the code, not you.               Some will let the AHJ push back (assuming you have to report that or they read the report). If anyone is willing to overlook deficiencies or are willingly being negligent, make sure you are prepared for potential litigation or loss of license.  Better yet just stop doing shoddy work.  If we make it difficult for problem customers to get cheap, poorly executed inspections reports, we advance as an industry. Yes duct smokes require smoke entry, a manometer can determine if air flow across the sensor is adequate.  That will Not show if the optical sensor is dirty or damaged in a undetected way by the detector.             Same deal with spot detectors, a magnet test proves the alarm circuit is functional, not that the sensor works. The sudden shutdown caused by a duct detector causing damage to a motor?  All modern AHU/RTU manufacturers have built in provisions for fire alarm/supervisory duct smokes to interface with the system and shut down immediately.  The code requires immediate shutdown, I would not be concerned with the observation of one hvac guy.  Resi fire alarms- 2013 nfpa 72 29.10  just like this section, I’m sure Ken would avise you follow the manufacturer’s instructions and the code.  Your contract would offer inspections, they don’t want it, not your issue when the insurance company comes looking, call Ken to fend off the vultures. I’m not being ignorant to the reality that most fire alarms do not get a completely perfect test and inspection despite being documented to the contrary.  It’s not easy dealing with customers that don’t care, don’t want to pay for a compliant test and inspection.   Yes the codes are making it more and more time consuming and by proxy more costly to the owner.  If we keep undercutting each other on inspections to get the work, as an industry, we are enabling the customers to get away with it.  This increases liability, reduces profits and makes it more difficult to get the next customer to pay for our services fairly.            Sounds like the definition of insanity. The stakeholders have come together already in regards to this.  If you feel the code is overly burdensome, draconian etc. remember it’s a consensus code- driven by AHJs, insurance companies, manufacturers, alarm companies and engineers (science!).  Get involved and advocate your position.Chad Putney, CFPSSolutions Engineer NICET  III 
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Response
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Thanks for sharing your expertise.
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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