Video surveillance with security cameras can help safeguard your property and keep onsite personnel safe, but the legality of digitally surveilling is often difficult to understand. Below we explore some of the most common issues and questions relating to video surveillance for businesses and private citizens.
Can Employers Use Video Surveillance?
Regarding the workforce, the answer is yes, but in general, most states require posting a notice that recording may be in progress. So it is a good idea to err in favor of posting such a warning. If at all reticent and you would prefer not to post such notices, be careful to research the specific rules for work environments as they apply to your location.
But in practice, why would you not let your employees know? Far more often than not, it is actually a very good idea to post such warning notices — and prominently.
Recall the reasons for installing video cameras in the first place — to reduce workplace theft by employees, to thwart unauthorized ingress, to reduce shoplifting, to discourage all manner of illegal activities and to help identify perpetrators after the fact.
Prominently displayed warnings become a natural deterrent to these and other undesired activities.
What Is an Intelligent Video Surveillance System?
As technology advances, capabilities expand. Thanks to advances in artificial intelligence and machine learning, video can now be evaluated by toolsets known as object or action recognition.
The former refers to being able to distinguish whether an object in the pixels is an adult or a vehicle (potential threat vectors) or a squirrel or cat (likely harmless). The latter detects motion and activity and most importantly, decides whether the action seems routine (and likely harmless) or anomalous (worth investigating).
Today’s advanced systems can make these determinations in real-time, alerting a security team or floor manager to take a closer look at what is taking place.
Even more advanced systems can be used to improve everything from customer satisfaction to business processes. For example, TechBuzz writes that “with the help of AI video analytics, the retail industry can research their customer needs, studying buying patterns or predict any future demand and supply.”
Alternatively, a shop floor or warehouse can use video in conjunction with AI to identify and correct bottlenecks or perform similar, ongoing productivity analyses.
As of today, the presence of such advanced capabilities has no impact on the legality of the surveillance.
What is an IP or Cloud Video Surveillance?
The majority of systems being installed today are of the close-circuit TV (CCTV) with local storage variety. But systems can also feature IP/cloud capability where the video is transmitted off site.
Cloud-based/IP systems can offer myriad advantages relative to CCTV. First of all, IP-based cameras can deliver superior image quality plus the ability to zoom in or out digitally.
Then in addition, IP-captured images can be stored in the cloud — and therefore are less susceptible to physical theft, destruction or flood or fire damage. They are also more likely to be remotely accessible in real time plus easier to share within e-discovery (a court request for all digital files) or other events.
Can Video Surveillance Be Hacked?
There are a handful of best practices for identifying and mitigating key risks. For hard-wired systems, it is absolutely essential to make certain your CCTV is on a network that is separate from the balance of your information systems.
For cloud-based systems, best practices include everything from using a VPN to creating complex, long-stringed, multi-character passwords for each camera or even the use of two-factor authentication.
Are We Required to Post a Sign that Video Surveillance is in Progress?
This is a bit of a gray area. Regarding the public, the answer is maybe, as the rules vary from state to state and even city to city. So it is a good idea to check with legal authority.
However in most instances, the answer is no -- you do not need to post such a notice. So long as this is a public area — not a changing room, bedroom, bathroom, locker room or similar — then neither the public nor the workforce has a reasonable expectation of privacy.
Is Video Surveillance Legal?
Broadly speaking — the answer is yes, with a caveat or two.
In general, the federal government has issued little in the way of video surveillance rules or limits for private property, commercial or residential.
That said, a caveat. The federal government has indeed stated unequivocally that video and other forms of surveillance are expressly prohibited in any areas where a person would have a reasonable expectation of privacy. So as far as the Feds are concerned, there are zero issues for a business or private property owner to position cameras to cover:
- Parking areas
- Points of entry or exit
- Loading bays
- Shop floors — or a place where working is being conducted
Where security camera systems — or for that matter any audio recorders — absolutely may not be placed would include:
- Dressing rooms or locker rooms
- Hotel rooms
Placing video recording equipment in these areas could subject the person or enterprise to not only federal but also state or local criminal and/or civil prosecution.
What About the Rules of States and Cities?
The second caveat. Although the federal government forwards very little beyond its broad privacy expectations, various states have published their own limitations or stipulations on the use of video recording for businesses or private citizens.
So while broadly speaking all one must do is avoid areas where privacy is the expectation, it may also make sense to have legal counsel for specific installations. Note that Indiana law places no restrictions on video surveillance in public spaces where no expectation of privacy exists.
Is Video Surveillance Admissible In Court?
In general, video surveillance tapes or files are generally “discoverable” in court and may be subpoenaed by police, plaintiffs or others or presented as evidence by the owners of the surveillance. However, the specific rules vary from state to state.
In Indiana, for example, courts follow the federal lead, broadly ruling that video surveillance of areas where there are no expectations of privacy are broadly legal. However, the state has issued trial procedure 26(B)(1) that lays out specific rules regarding discovery. In general, if a person or business does indeed conduct video surveillance, more than likely those materials can be “discoverable” in a court of law.
Specifically, if video is “recorded in the ordinary course of business” or if the practice is “a precaution for the ‘remote’ prospect of litigation,” it is not privileged and therefore subject to discovery.
Put simply, if you are going to install and use video surveillance, you must be prepared to promptly produce and share such evidence with legal authorities, plaintiffs, defendants and others.
How Long Do We Need to Preserve Video Surveillance Files?
For most businesses and certainly for individuals, there are no hard and fast rules. However, increasingly, more regulations are being written for more industries — such as financial services, healthcare and even retail — requiring that records be held for specific periods of time.
However, evolving Federal Rules of Civil Procedure (FRCP) and in particular Rule 34 suggest that businesses and individuals practice greater discipline in their archiving of digital records — meaning businesses should look to the rules of e-discovery.
Which means, business owners should consider taking steps to preserve both hard copy CCTV tapes as well as offsite IP/cloud recordings.
How Can Taylored Systems Help?
Surveillance systems are a key means for businesses to achieve greater loss prevention, employ safety, workforce productivity and asset protection — and that’s just for starters.
To create an ideal commercial video surveillance solution for your company, we will listen to your challenges before presenting a range of potential solutions.
Ultimately, what we propose will be the right mix of the right tools chosen from the right providers to create an effective and easily managed system. Once up-and-running, we will make sure your teams are adequately trained as well as implement other measures of quality assurance so that these new tools can help you achieve your objectives.
When you’re ready to speak, we’re here.