How you gather and use evidence determines whether you will have a successful covert opera
How you gather and use evidence determines whether you will have a successful covert operation and whether you can be sued or criminally charged.

Jul 1, 1997 12:00 PM

Legal considerations are perhaps the most important aspect of obtaining visual information covertly. Certainly, if not the most important, the legal side of closed-circuit video surveillance is the most discussed. To the best of my knowledge, there are no federal, state, or civil laws that pertain specifically to the use of CCTV - covert or overt. That, however, does not mean government or private investigators can do whatever they please when it comes to covert surveillance. There are laws that protect against illegal gathering and use of visual information. The moral of the story is to walk softly and carefully with your hidden cameras. If you employ empathy, common sense and high moral standards, and beware the end-user's hidden motives, you should remain safely within the law.

Before we proceed, I should offer the disclaimer that I am not a lawyer. Everything in this article represents my personal opinion or interpretation of the law. Neither I nor the magazine is giving legal advice. I always recommend that proper legal counsel be sought in any matters concerning the use of CCTV equipment for the purpose of gathering evidence or personal information. You could list the laws and rulings pertaining to visual surveillance on a single page. On the other hand, the laws that pertain to individual rights and freedoms could fill volumes. This article covers the spirit of the law, versus the attributes of the law. You should walk away with a good overview of the structure of the law and how visual surveillance fits into it.

Government and the private sector In covert surveillance, how information is gathered and used determines whether you will have a successful operation and whether you will be sued or criminally charged.

The first step to understanding the legal side of anything is to understand the players. In the security industry, we have two basic players: government and the private sector. Simply put, the government (police, FBI, CIA) is held accountable to the First, Fourth, and Fourteenth Amendments as its primary directives. These folks spend hundreds of hours studying constitutional law to ensure they do not infringe on anyone's rights. Constitutional law deems material evidence such as videotapes gathered by government employees acceptable in a courtroom, or prevents it from being introduced.

The private sector, on the other hand (private investigators, security companies) is not held accountable to the U.S. Constitution. The private sector is subject to criminal, civil and tort law - the rules that were written to prevent private citizens from stepping over the line against other private citizens. Although it is perfectly legal for the private sector to do covert surveillance without tools such as search warrants, it is possible that state, local, or tort laws can be broken by investigators during covert operations, making them liable.

Criminal law is easy in that if you break it, you will pay a fine or go to jail. It encompasses the basic tenets we learned as children and have tried to abide since - that it's wrong to steal, enter a private premise without invitation and commit murder. Criminal laws are designed to protect us from crimes against society as a whole.

Civil laws allow one person to seek compensatory or punitive damages for actions by another individual or organization and are settled via tort law. Tort laws are made up of legislative enactments and common law and vary from state to state. There are three types of tort law that stand out from the rest when it comes to covert camera systems:

* intentional, * negligence, and * the strict liability or willful tort.

An intentional tort falls in place when an individual fails to look ahead to determine the consequences of his actions against another, or if he doesn't care. A negligence tort is usually the result of physical or mental damage to one individual caused by a lack of reasonable care on the part of another individual. Reasonable care refers to an attempt to protect another individual's privacy, reputation, or physical well-being during or as a result of an action. A strict liability tort is usually a combination of the intentional and negligence torts involving something that is done intentionally that has negative physical or mental effects on the suing party.

Differences between criminal and tort law * Criminal law is based primarily on the subject's intent while committing an action, while tort law is more concerned with the consequences of an individual's actions against another individual, regardless of intent.

* Criminal law usually seeks punishment against the individual while tort law usually seeks a way for the injured individual to reconstruct their life to the way it was prior to the incident or intrusion. This is usually done through monetary means.

* A third difference lies in the structure of prosecution. Criminal law is specific about the types of physical evidence that can be introduced, as well as methods of proof and procurement of evidence. Tort law, on the other hand, has a wider base of acceptance for evidence with fewer requirements of proof of that evidence. In other words, what may not be presentable evidence under criminal law may prove to be the damning piece in a tort case. This means it is easier for an individual to sue or prosecute a private investigator than it is for the individual to come back against a government investigator. For the most part, the main concerns of private security are these:

* Can the evidence obtained by the private investigation be used in a courtroom or to inflict punishment; and * Can the party that was investigated use the evidence obtained to sue or counter-prosecute the private investigators involved because of the activities involved in gathering the evidence?

Ignorance of criminal or tort laws, e.g., breaking and entering, trespassing, disorderly conduct, harassment, invasion of privacy, etc., on the part of the security practitioner is no excuse in a courtroom.

A reasonable expectation of privacy For the most part, laws that are broken by private investigators concern harassment and the right to privacy. Information gathered in a law-abiding manner that pertains to the purpose of the investigation is usually acceptable. It's when the information exceeds these bounds that investigators open themselves up to criminal prosecution or civil suits. In most states, evidence that is gathered improperly by government entities is dismissed by the court. On the other hand, evidence that is gathered improperly by a private individual can result in a prison term or the loss of personal assets.

Under normal circumstances, private investigations are subject to "reasonable expectation of privacy" rulings based on:

* Whether the persons being watched had the impression that their actions were private or invisible to the casual observer; and * Whether society would agree as to the amount of privacy the persons expected.

Areas that fall under strong expectation of privacy are the home, office, files and such - basically, things that can be locked, hidden or unobserved by the casual passerby. But there are public areas that can also fall under the expectation of privacy such as public phone booths and restrooms. The purpose of the investigation must be clearly defined and the evidence gathered must pertain to it.

Some states are adopting laws that require private individuals to act within the guidelines of the Fourth Amendment to the Constitution as well as the plain view doctrine.

The Fourth Amendment says: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

That means the private investigators in those states must act under the same guidelines as government officials. The key difference is that the private individual cannot obtain a search warrant. Therefore the plain view doctrine comes into play, which states, simply, that if an object is not in plain view, it cannot be used to obtain a search warrant based on reasonable or probable cause. It also means the private individual could be held accountable for invasion of privacy if they moved, searched, or had to look for an object of investigation.

At the end of the day, the private investigator is still guided by criminal or tort laws only in the majority of states. Each state has its own constitution, and private and government agencies must act according to the laws of the state they are operating in. This holds true in all cases except where the Constitution has a conflicting provision. In those cases, the Fourteenth Amendment bears rule by stating:

All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Inasmuch as the individuals are afforded protection from invasion in their homes, so can they be in the workplace and public places under certain conditions.

Most covert camera jobs pertain to employee dishonesty or theft in the workplace. In such cases, there have been rulings providing guidelines for the covert investigator, employer and employees. Most rulings have resulted from employees suing covert investigators on the basis of invasion of privacy. In most cases, however, the employer has open rights to protect the assets of the company from theft, espionage, drug and alcohol abuse, vandalism and other business-related threats. The employer's rights can include off-site surveillance of an employee when it pertains to specific crimes against the employer and when done within the scope of tort law. But the employer must be careful not to exceed the limits of reasonable expectation of privacy - and harassment.

In cases where outside surveillance is conducted, the term "rough shadowing" is often alluded to in the courtroom. Rough shadowing refers to surveillance that exposes the subject to public disrepute, ridicule, contempt or public embarrassment. It could be related to investigators who are "public" or overzealous in their surveillance activities such as parking outside the subject's home in full view of neighbors, following subjects into places of businesss, or publicly filming subjects with no effort to conceal their motives or actions.

There have been precedents set on both ends of the spectrum. In Forster v. Manchester, 189A.2d 147 (1963), the Pennsylvania Supreme Court rendered a decision responding to a plaintiff's complaint of invasion of privacy against a private investigator. The plaintiff complained that the private investigator was continuously trying to take moving pictures of her, including when she was driving her car on public streets. The plaintiff further complained that as a result of the two-day surveillance, she was subject to nightmares, excessive nervousness and other such problems. She filed for personal injuries as a direct result of the investigator's activities. The court, however, found in favor of the investigator because the plaintiff had filed an insurance claim and because the actions she described had been performed on public streets under public discretion. Because she had filed an insurance claim against a car accident, she was not protected under privacy acts and should expect a reasonable investigation by the insurance company. Reasonable investigation in this case included the ability to demonstrate the plaintiff's physical restriction of motion in public.

In Schultz v. Frankfort M. Accident & P.G. Insurance Company, 139 N.W. 386 (1913), the Wisconsin Supreme Court ruled in favor of the plaintiff where the plaintiff had filed suit that he was being investigated through the use of rough shadowing. It limited the plaintiff's ability to perform in a natural manner. Additionally, it exposed the plaintiff to public disrepute, ridicule and contempt.

Within the confines of the workplace, the employer more or less has carte blanche for covert operations so long as he/she does not exceed the scope of the interview. Any visual evidence pertaining to a crime or suspected violation is acceptable provided it stays within the confines of moral and privacy issues. If information is gathered that is outside the scope of the investigation and that information is used to enforce an action against an employee's employment or status within the company, the information is considered damning and the product of invasion or harassment.

To address each of the above items: * Carte blanche refers to the employer's right to protect his business's ability to grow and prosper. Therefore, an employer has the right to use covert tools as deemed necessary to provide evidence of crimes against the business or individuals employed by the business. But any evidence gathered must be considered in light of moral and privacy issues. For instance, can an employer place a covert camera in an employee locker room? Technically, yes, provided certain conditions are met such as the video being reviewed by members of the same sex: a tape of a woman's locker room viewed only by a woman; a men's locker room viewed only by a man.

* The second condition applies to the storage and privacy of the video information gathered. If a videotape is generated under such conditions, who has access to the tape and what information is made public? If a videotape of a locker room is shown about the office, any individual on that tape could seek punitive damages based on an invasion of privacy, harassment, or public humiliation. This would be based on the individual's perception of privacy. However, if the tapes are maintained in strict confidence and only portions of the videotape that pertain to the investigation are made available to individuals directly involved in the investigation, the invasion did not happen. Since other individuals could casually observe another individual's actions in a locker room, the amount of privacy offered by a locker room is minimal.

* The third condition relates to the scope of the investigation. If, in a workplace, information is gathered that does not pertain to the directive of the investigation, but does imply an action for which an employee could be reprimanded or punished, the evidence cannot be used against the individual, because the information would not ordinarily have been available. The scope of covert operations must be clearly defined in advance and must be adhered to. Evidence gathered outside the scope of the operation that is acted upon could be interpreted as invasion of privacy or harassment.

I have only skimmed the slippery surface of the law and how it applies to the use of CCTV. There is a book, however, that I have found extremely useful - the only book I have found that specifically addresses covert surveillance. I highly recommend that it become part of anyone's library who is involved in covert surveillance. It is Legal Guidelines for Covert Surveillance Operations in the Private Sector by John Dale Hartman. It is available through Butterworth-Heinemann publications or the American Society for Industrial Security (ASIS), Arlington, Va. Ignorance of the law cannot be the defense of a private investigator. Educate yourself, and keep your morals high.

A case in point Q: Can a covert camera system be installed in a private home to gather information pertaining to the infidelity of the home owner's partner? A: Under the interpretation of privacy laws, the answer is, "No!". Both the investigator and the home owner would be subject to an invasion lawsuit, because the home owner's partner has an extreme expectation of privacy in his/her own home. But can the investigation be rerouted to an access area of the home such as the windows, showing who is coming and going and when? - probably. It would depend on the amount of intrusion necessary.

The home is divided into three areas of concern: * the house; * the curtilage; * the open field.

The house, obviously, is the area within the walls of the living quarters. The curtilage is the yard and any buildings within its borders such as a garage, shed or barn. The open field refers to what borders the curtilage such as neighbors' yards, fields and woods. While direct covert operations within a home are considered an invasion of perceived privacy, observation of activities in one of the outbuildings would not necessarily constitute an intrusion - especially if observation could be made from public access points. Observation of the open field would not constitute invasion provided that no laws pertaining to trespass had been broken. Similarly, observations of the home would need to be done through windows that offer public view. That is, if a window has curtains that are not drawn so an observer can make note of activities inside without using enhancement tools, the evidence gathered would probably be safe. If, on the other hand, the only way that activity could be noted was by using binoculars or telephoto lenses, the evidence would most probably be considered an invasion of privacy.

Note that vision enhancement tools are generally acceptable if their purpose is to enhance or enlarge what was visible with the naked eye. That is, if you are five city blocks away from a window, would you be able to see an action or object within? - no. Therefore the use of a telephoto lens or binoculars would be considered illegal because it did not enhance the image, but provided the only means with which to see it.

ABOUT THE AUTHOR Charlie Pierce is a leading expert on CCTV and a regular contributor to this magazine.

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