With the introduction of the industry’s first truly open body worn camera solution, there has been a significant rise in interest across industries, not just in law enforcement. For example, many retailers and healthcare providers want to better understand if the value and viability of implementing a body worn camera program is worth it, since there are complicated legal concerns and they do not want to potentially violate federal laws.
One important U.S. law to understand when considering a body worn program is U.S. statute, 18 U.S. Code 1801, which addresses someone’s expectation of privacy. This regulation comes into play when implementing body worn cameras, because a guard, wearing a body worn camera, may be dispatched to handle a situation in an area where a person may have a reasonable expectation of privacy. Throughout this article, we will look at examples and resources that may help you decide if body worn cameras are a viable solution for your needs and assist your legal teams in navigating tough questions.
Expectation of privacy
Body worn cameras are a mobile security camera that can record video and audio at the press of a button. For years, body worn cameras have been primarily used by law enforcement officers who have undergone extensive training in order to use this technology in a manner that does not violate U.S. statute, 18 U.S. Code 1801. This statue covers video voyeurism and outlines a person’s reasonable expectation of privacy as that person’s right to not be recorded without their consent. It defines a reasonable expectation of privacy as a place where a person would feel like they could disrobe in private without their image being captured or in a private area where they would not be visible to the public, regardless of if that place is in private or public.
Reading this and knowing that you should never see a security camera in a bathroom, changing room or even inside of someone’s home, you might think that any recording in these places without consent would be a violation of someone’s Fourth Amendment rights. However, there are exceptions in the statute for “lawful law enforcement, correctional, or intelligence activity.” This is where clear, comprehensive body worn policy becomes important.
When developing policies and procedures, it’s important to remember that body worn cameras are mobile security cameras. However, unlike traditional security cameras, they only save recordings when activated. There may be times when that recording might be done in an area where someone could claim they should have a reasonable expectation of privacy. This is why clear, comprehensive expectations for staff on when and where they can activate their cameras during a situation when expectation of privacy may be challenged are so important. Even if a person could claim they should have an expectation of privacy, the question should be asked, when does that person lose that expectation?
Lessons from law enforcement
Law enforcement agencies discuss this topic in their policies and procedures, which outline when a body worn camera should begin to record with terms like must and shall, as there can be exceptions. An example of when recording could be permitted in these areas are when an officer is dispatched to a call for service and has to enter a person’s home or a public restroom. As long as they are doing so within their normal course of duty or with just cause, there should be no violation. It’s worth noting that many policies state that an officer may have the discretion to stop recording, if they have a good reason and feel it is safe to do so. For example, if an officer is responding to a domestic violence call and a person in the house is unclothed, the policy might state that the officer has the discretion to turn their camera off to make people feel more comfortable.
The Brennan Center for Justice has put together a chart, state by state, showing how major police departments with body worn camera programs apply the Fourth Amendment in these situations. For example, the Atlanta Police Department policy reads: “Body worn cameras shall not be activated in dressing rooms, locker rooms and restrooms unless performing legitimate law enforcement action.” This legitimate law enforcement action would insinuate that a person has lost their right to privacy and a recording can take place.
Body worn cameras in other industries
Expectation of privacy is a federal law and needs to be considered by everyone, not just law enforcement. The healthcare segment is a great example, where most employers do not have sworn law enforcement staff, but employ or contract out security guards. A good policy and training program must be in place to ensure that these individuals are utilizing this technology in an approved manner, since there is a risk that private patient information may be recorded.
Security Consultant, William S. Marcisz, address this topic in detail, in an article he wrote covering the legal challenges a hospital may encounter when implementing a body worn camera program. In this article, he clearly outlines when a person has or loses their reasonable expectation of privacy, providing the example; if a security officer is dispatched to a patient’s room where the patient is assaulting a hospital staff member, that patient has given up their right to a reasonable expectation of privacy, as that officer is responding to a call for service during their normal course of duties.
Expectation of privacy does not just apply in the moment; it also applies after the fact in how video is managed. Video voyeurism is a violation of the Fourth Amendment. While there may have been justification to record in a sensitive area, that does not mean that an individual loses all their rights after the fact. Policy needs to be put in place outlining how that video can be viewed and shared. Alan Bulter, System Director of Public Safety & Security at CoxHealth, highlights this fact in a webinar he was part of: Body Worn Cameras in Healthcare Security. In it, he talks about how important it is to have a strong policy in place for who has access to recorded video, the way it can be reviewed and shared, as sometimes these videos are highly sensitive. He goes on to discuss how it’s not a problem that video was recorded, it’s how it was reviewed and shared after the fact that could violate a person’s Fourth Amendment.
Closing
Body worn cameras have become an invaluable asset for law enforcement and now commercial and private companies. As they continue to grow in popularity, there will be more and more questions from various segments on how body worn cameras can fit in workflows. However, one should not stall or not consider a body worn camera program because of concerns around expectation of privacy. So long as you are prepared with a comprehensive policy and procedure, quality training is available, and a thorough review of local laws has been done, a body worn camera program can become a vital asset to your organization helping to improve workplace safety and operational efficiency – no matter what state you are operating in.
