I quite vividly remember my family’s very first VCR. How could I forget—the thing seemed to occupy half the living room. Yet, despite its size (behemoth by today’s standards), at the time, it was a thing of pure beauty—freeing us from the merciless rigidity of TV Guide and providing us the ability to record our favorite television shows1 (provided we had a supply of VHS tapes and the space to store them). Its only other downside—at least from my parents’ perspective—was it required the presence of their children to be able to program it.2 Unless my parents wanted to wait until the beginning of a show to manually press the “record” button, either my brother or I needed to be present to program the electronic timer that would free them from their servitude to TV programming.
As I’ve aged, I’ve learned the technological ailment suffered by my parents wasn’t unique to them.3 Indeed, they appear to be age-triggered, as I now routinely find myself on the verge of calling my 4-year-old nephew any time I have trouble with my iPhone4 or need help restoring my home’s wireless network. The pace at which technology morphs leaves many simply unable—if not unwilling—to keep up with the programming instructions.
But it’s not just individuals who have difficulty keeping up with either the offerings or ramifications of technology. Society itself now battles daily with unintended consequences of technological progress; issues ranging from protecting our children from virtual strangers, dealing with the higher stress rates caused by near constant contact, attention deficit issues and even more dangerous highways caused by the idiots who can’t stop texting while driving. Even our judicial system struggles to find answers to the legal issues arising from the collision between technological ability and individual rights. In California, that collision recently involved hidden cameras and the right of privacy.
This all arose from a company’s belief that one of its computers was being used to access pornography. The subject computer was located in an office, which was shared by two coworkers during the day. However, the company—which provided services to neglected and sexually abused children—believed that the unauthorized porn access was occurring at night—ostensibly by someone with unfettered access to the facility at night. So, the company installed hidden cameras5 in the office and turned them on at night only—for the purpose of trying to catch the lascivious offender. The camera was turned off every morning before the coworkers came to work—with the exception of one. The plan would have worked just fine, except for one small point—the office coworkers found out about the cameras. And, like all good Americans, they sued. They alleged the company’s conduct in installing the cameras—even though the cameras never caught any image of the coworkers—constituted an invasion of privacy.
A quick aside here. I’ve defended against a lot of employment lawsuits and, at some point during each, I try to figure out what really motivated the lawsuit. The answers range from righteous indignation to greed and dishonesty. But here, to go through the time, cost and stress of a lawsuit over nonoperating hidden cameras, raises the question of what the coworkers must have thought had been recorded on those tapes. But I digress.
The lawsuit made it all the way to the California Supreme Court, which rendered its decision last week. In it, the Court agreed with the employees’ contention that the mere installation of the cameras constituted an intrusion into their reasonable expectation of privacy. It reasoned that, because the area in question was a private office instead of a public area of the facility, had a door that could be locked and was necessarily intended to be isolated from other areas of the workplace, the employee occupants of the office had an expectation of some level of privacy in that area. Because the employees had an expectation of privacy, the installation of the cameras in that area—which were intended to capture conduct occurring in that area—intruded upon that privacy. In support of its reasoning, the Court noted the employer had no policy relating to this type of monitoring, specifically rejecting the contention that the company’s computer technology monitoring (monitoring of computer activity) could be construed to have put the employees on notice that video recording in a semi-private office was intended.
Although the Court held the employees’ had a reasonable expectation of privacy that was intruded upon, it ultimately decided the intrusion wasn’t so severe or offensive to let the employees prevail. It looked to the degree of the intrusion (slight—given that the video wasn’t recording during the day) and the employer’s justification (ensuring staff were suitable to work with children and determining unauthorized and potentially harassing use of its technological resources).
In the end, the employees ultimately lost. However, the company would have been well served to put employees on notice of the need to conduct the surveillance—especially in light of the fact that the employees weren’t suspects. As the Supreme Court made clear in its concluding remarks, its decision wasn’t intended to approve of or promote such surveillance measures. So, before installing surveillance cameras or other technological methods, make sure you consider the legal risks you face.6
1 Of which there were very few, given that there were only seven channels’ worth of programming at the time. However, now with nearly 1,000 channels at my fingertips, I still suffer from the inability to find anything worthy of watching, much less “taping.”
2 A feature not described in the instruction manual.
3 They may have been more severe, but were certainly not unique.
4 I’m a convert—and a zealot at that. That sucking sound you hear is my disposable income rushing from my wallet to the app store.
5 A testament to technological advance. Back when we had our first VCR, the only way you could hide a camera in an office was to install it in a Braille institute.
6 Or call a teenager to help you hide them better!
