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Covert v open and obvious cameras in prohibited places
August 2 2023
Covert v open and obvious cameras in prohibited places
          I reviewed the Residential All in One and the Commercial All in One we purchased and didn't see specific language about covert cameras.
          A customer is requesting to add a covert camera in a locker room to prevent theft and produce shrinkage. Employees use this locker room to put on a coat and special gear over their clothes before they start the shift and take off the coat and gear after.
          Can you advise?
          This presents an interesting issue which a perspective on cameras and privacy that I think we skirt around but don’t always address directly.  Most if not all states have laws dealing with privacy rights and video viewing and recording via cameras.  Generally, camera placement, which also means viewing and recording video, is not permitted in areas where privacy is absolutely expected, and the laws usually specify bathroom, public dressing areas and other public places where privacy is not reasonably expected. 
          My recollection is that these laws do not differentiate between open and obvious camera placement and covert cameras, which logically achieve the same purpose, viewing and recording video.  There are no exceptions in the laws when signs are posted or audio announcements are made.  There is no exception for open and obvious cameras as opposed to covert cameras.  The laws simply prohibit viewing and recording video in certain private areas. 
          That is why the All in One agreements and the video specific agreements [such as Virtual Doorman or Mobile Surveillance Lease or the new Virtual Remote Guard Monitoring and Access Control Agreement] do not deal differently with open and obvious or covert cameras. 
          While it’s not a good idea to try and apply common sense to the law all of the time there are always special considerations, scenarios and special needs that would suggest that the law may not need to be followed to the letter all of time.  Most of the time the violation of the law are not subject to scrutiny; in other words, no one is the wiser.  Do you really need to stop at a red light and wait until green when you’re in the middle of no-where and no one is around [other than the cop you didn’t see]?   More on point, can you install a camera in an elderly person’s bedroom, even bathroom, when you need to closely monitor the person?  What about a dressing area in clothing store that is experiencing thefts?  And, how about the employee restroom where all they allegedly do is change jackets, not don’t take showers or get undressed?  If no one complains then cameras and monitoring can take place for years.  On other hand, someone can complain to authorities [read that law enforcement or lawyers who like to start lawsuits]  the first day the cameras are installed. 
          While the law may not differentiate between covert and open and obvious cameras as a practical matter someone considering whether a law has been broken or a right of privacy invaded might consider all of the specific circumstances before finding a wrongdoing, criminal or civil. 
          I’ve mentioned this before and no one has commented one way or the other, but where did this ubiquitous practice of a telephone recording announcing that the call is being recorded come from?  While that might work in a “one party” state it likely doesn’t work in an “all party state” for the same reason that signs don’t work for video or audio interception.  The only explanation for no exceptions to the video and audio laws are that not everyone reads, hears or pays attention, and that should not impair their privacy rights, which have become absolute. 
          So I have cautioned alarm clients to be sure to install open and obvious cameras in questionable places the K&K Standard Contract Forms do not address this issue, nor do I think the contracts, at least in printed form, should.

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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