Title: LEGAL ISSUES IN VIDEO SURVEILLANCE: What to Watch Out For
1LEGAL ISSUES IN VIDEO SURVEILLANCE What to Watch
Out For
- Alan F. Wohlstetter, Esq., Chair
- Infrastructure Practice Group
- Fox Rothschild LLP
- Philadelphia, PA
2LEGAL ISSUES IN VIDEO SURVEILLANCE What to Watch
Out For (cont.)
- An overnight success that only took five years
- Leadership starts with articulating the public
policies to be served - Create a legal structure that can involve the
community and limit the Citys liability - Utilize a procurement process that is transparent
and involves the public
3LEGAL ISSUES IN VIDEO SURVEILLANCE What to Watch
Out For (cont.)
- An overnight success (cont.)
- Create a financial model that works through
public-private partnership (P3) agreements - Adopt written policies that address an
individuals right to privacy, audio
surveillance, retainage and disclosure of
surveillance footage and negligent security
claims
4LEGAL ISSUES IN VIDEO SURVEILLANCE What to Watch
Out For (cont.)
- The goals of your communitys system may be quite
different from Wilkes-Barres, and the way you
resolve these issues will therefore be unique - It is critical, however, to recognize the legal
factors to balance and how might they be addressed
5LEGAL ISSUES IN VIDEO SURVEILLANCE What to Watch
Out For (cont.)
- Articulating the Public Policies to Be Served
- Mayor Tom Leighton of Wilkes-Barre, Pennsylvania
wanted to create a wireless city, and then build
a video surveillance network to take advantage of
the wireless infrastructure
6LEGAL ISSUES IN VIDEO SURVEILLANCE What to Watch
Out For (cont.)
- Mayor John Street of Philadelphia wanted to
create a wireless city, and then use the City
revenue from the venture to address digital
divide issues - As of the fall of 2010, Wilkes-Barre is a
wireless city, with 250 video surveillance
cameras serving as a force multiplier for local
police - Philadelphia has a half-built wireless network
that has changed hands twice for pennies on the
dollar, and has no functioning video surveillance
cameras to speak of
7LEGAL ISSUES IN VIDEO SURVEILLANCE What to Watch
Out For (cont.)
- Articulating the Public Policies to Be Served
(cont.) - Mayor Leightons public policy goals
- Create a state-of the art, 24-7 video
surveillance network that boosts public safety
and economic development - Allows a more strategic and safer deployment of
Police - Boosts Police responsiveness and conviction rates
- When an old camera is decommissioned, it doesnt
need a pension, and it doesnt need health care
8LEGAL ISSUES IN VIDEO SURVEILLANCE What to Watch
Out For (cont.)
- Creating a Legal Structure for the Network
- Establishing a contracting entity distinct from
the city may insulate it from liability, as well
as avoid the need to follow traditional
procurement procedures which are poorly suited
for P3s - Governmental entity such as the City itself
- State non-profit corporation with City tort
immunity - 501(c)(3) corporation which can increase
possibility for private donations - 63-20 corporation
9LEGAL ISSUES IN VIDEO SURVEILLANCE What to Watch
Out For (cont.)
- A Transparent Procurement Process that Involves
the Public - Request for Information and Comment alerts
industry participants to the opportunity - Request for Qualifications ensures that there are
private sector players with requisite financial
strength, experience and interest to bid
10LEGAL ISSUES IN VIDEO SURVEILLANCE What to Watch
Out For (cont.)
- Request for Proposals containing concession or
network agreement detailing specific outcomes
required - Bidders conference allowing us to define
expectations and gather ideas from bidders - Solicit public input on location of surveillance
cameras
11LEGAL ISSUES IN VIDEO SURVEILLANCE What to Watch
Out For (cont.)
- Creating a Financial Model that Works
- A successful public-private partnership (or P3)
places the risk upon the party best able to
mitigate such risk - For a municipal video surveillance network, the
installation, operational, maintenance and
obsolescence risks are best borne by the private
party with information technology experience - It was the job of the camera vendor and 4.9
network provider to provide us a system that
worked with the connectivity necessary for
high-level functionality
Reward
Risk
P3s
12LEGAL ISSUES IN VIDEO SURVEILLANCE What to Watch
Out For (cont.)
- Creating a Financial Model that Works (cont.)
- Having the enterprise off of the Citys balance
sheet ensures that its credit is not at risk in
the venture - A revenue opportunity to contract with major
institutions interested in having cameras located
in designated areas - The School District and the Parking Authority
have entered into five-year arrangements
providing the revenue stream necessary to pay for
monitoring, as well as administrative costs - Contracted with a private company to monitor the
surveillance cameras at a cost two-thirds less
than the cost of police officers serving the same
function
13LEGAL ISSUES IN VIDEO SURVEILLANCE What to Watch
Out For (cont.)
- Establishing Written Video Surveillance Policies
Addressing Citizens Right to Privacy - Surveillance of public areas is not a violation
of an individuals right to privacy under the
Fourth Amendment because individuals do not have
a reasonable expectation of privacy to things or
actions in public view - Courts have held that merely being filmed while
in a public place, even with a zoom lens, does
not by itself constitute an invasion of privacy.
14LEGAL ISSUES IN VIDEO SURVEILLANCE What to Watch
Out For (cont.)
- Pennsylvanias Political Subdivision Tort Claims
Act (PSTCA) states that no local agency shall
be liable for any damages on account of any
injury to a person or property - The PSTCA does not, however, provide civil
immunity for acts or conduct which constitutes a
crime, actual fraud, actual malice or willful
misconduct. - Video surveillance of homes is more likely to be
considered a search under the Fourth Amendment,
especially when enhancing technologies are used
15LEGAL ISSUES IN VIDEO SURVEILLANCE What to Watch
Out For (cont.)
- Establishing Written Video Surveillance Policies
Addressing Recording of Sound - Audio surveillance is heavily regulated by both
state (Pennsylvania Wiretapping and Electronic
Surveillance Control Act, 18 Pa. C.S. 5701 et
seq.) and federal law (Federal Electronic
Communications Privacy Act of 1986, 18 U.S.C.
2510 et seq.). These provisions do not apply to
silent video surveillance. - The surveillance system should not record sound
16LEGAL ISSUES IN VIDEO SURVEILLANCE What to Watch
Out For (cont.)
- Establishing Written Video Surveillance Policies
Addressing Retainage and Disclosure of
Surveillance Footage - There is no statutorily mandated length of time
that surveillance footage must be retained - This is often a cost/benefit determination for
the City
17LEGAL ISSUES IN VIDEO SURVEILLANCE What to Watch
Out For (cont.)
- Recorded footage need only be kept for a
sufficient time for law enforcement purposes, but
access must be made to criminal defendants and
parties involved in valid lawsuits against the
City (Seven days in Wilkes-Barre) - Video records are disclosable under
Pennsylvanias Right-To-Know Law - The public release of video surveillance records
would reveal the scope and capability of
surveillance cameras, thus alerting individuals
to blind spots within the security system.
18LEGAL ISSUES IN VIDEO SURVEILLANCE What to Watch
Out For (cont.)
- Establishing Written Video Surveillance Policies
Addressing Negligent Security - Arises out of the principle of premises liability
- Video surveillance should be part of a broader
security program that is reasonable for the needs
of the City and its residents
CAMERAS NOT CONTINUALLY MONITORED
19LEGAL ISSUES IN VIDEO SURVEILLANCE What to Watch
Out For (cont.)
- Establishing Written Video Surveillance Policies
Addressing Negligent Security (cont.) - Cameras must contain a disclaimer that can help
avoid a claim of negligent security for a camera
that is not always monitored - The disclaimer on the City of Wilkes-Barres
cameras WARNING Cameras are recorded, but are
not continually monitored - Cornell University This area is subject to
surveillance for security purposes and may or may
not be monitored.
20LEGAL ISSUES IN VIDEO SURVEILLANCE What to Watch
Out For (cont.)
- The City of Wilkes-Barre created a video
surveillance network that works well for that
community - Articulate the public policies to be served
Creating a state-of the art, 24-7 video
surveillance network that boosts public safety
and economic development - Create a legal structure that can involve the
community and limit the Citys liability Hawkeye
Security Solutions, a state non-profit
corporation with city tort immunity with a Board
consisting of community leaders
21LEGAL ISSUES IN VIDEO SURVEILLANCE What to Watch
Out For (cont.)
- Utilize a procurement process that is transparent
and involves the public RFQ RFP bidders
conference, allowing us to define expectations
and gather ideas from bidders solicit
suggestions from the public on cameras locations - Create a financial model that works through P3
agreements service agreement with camera vendor
five-year agreements with the Citys major
institutions camera monitoring agreement with a
private company
22LEGAL ISSUES IN VIDEO SURVEILLANCE What to Watch
Out For (cont.)
- Creating a video surveillance network that works
for your community (cont.) - Adopt written policies that address an
individuals right to privacy, audio
surveillance, retainage and disclosure of
surveillance footage and negligent security
claims no cameras focused on homes no audio
recording destroy footage after seven days
disclaimer on cameras - Successfully used its video surveillance network
to enhance public safety and economic development
through the addition of 250 video surveillance
cameras run by a non-profit corporation and
financed with the support of the local business
community - The solution for your community will be crafted
by the leaders here, with an eye toward the same
legal issues Wilkes-Barre was forced to address
23LEGAL ISSUES IN VIDEO SURVEILLANCE What to Watch
Out For (cont.)
- Alan F. Wohlstetter, Esq.
- Chair, Infrastructure Practice Group
- Fox Rothschild, LLP, a 500-attorney law firm
- Former Counsel to Wireless Philadelphia,
Philadelphias wireless network - Former Counsel to Wirefree Wilkes-Barre,
Wilkes-Barres wireless network - Counsel to Hawkeye Security Solutions,
Wilkes-Barres video surveillance network - Phone (215) 299-2834
- awohlstetter_at_foxrothschild.com