LEGAL ISSUES IN VIDEO SURVEILLANCE: What to Watch Out For

1
LEGAL ISSUES IN VIDEO SURVEILLANCE What to Watch
Out For

• Alan F. Wohlstetter, Esq., Chair
• Infrastructure Practice Group
• Fox Rothschild LLP
• Philadelphia, PA

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LEGAL 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

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LEGAL 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

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LEGAL 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

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LEGAL 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

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LEGAL 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

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LEGAL 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

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LEGAL 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

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LEGAL 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

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LEGAL 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

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LEGAL 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
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LEGAL 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

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LEGAL 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.

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LEGAL 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

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LEGAL 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

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LEGAL 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

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LEGAL 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.

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LEGAL 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
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LEGAL 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.

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LEGAL 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

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LEGAL 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

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LEGAL 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

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LEGAL 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 [phone]
• awohlstetter_at_foxrothschild.com