Legal Implications of Video Surveillance on Transit Systems (2018)

Below is the uncorrected machine-read text of this chapter, intended to provide our own search engines and external engines with highly rich, chapter-representative searchable text of each book. Because it is UNCORRECTED material, please consider the following text as a useful but insufficient proxy for the authoritative book pages.

42 under current constitutional jurisprudence, if video surveillance is otherwise lawful, a warrant is not required before using such technologies. Some cities and localities, however, have banned the use of tech- nologies needed to identify and track an individual. Under current Supreme Court precedent, a tran- sit agency’s use of video surveillance does not violate the Constitution. Presently, there is neither a specific constitutional right to privacy nor a constitutional right to privacy in one’s public activities, including travel or locational information. The Supreme Court and other courts have upheld the constitutionality of video surveillance on various grounds, such as that public video surveillance is not a search within the meaning of the Fourth Amendment and/or that under the circumstances an individual had no reasonable expectation of privacy. No cases were located for this digest holding that a transit or other agency’s deployment of a public video surveillance system violates the Constitution. A factor that augurs well for the legality of transit agencies’ use of video surveillance is that the agencies generally give notice of the presence of video and/or audio and video surveillance. Some state constitutions protect an individual’s right to privacy. However, it does not appear that state constitutional privacy provisions would apply necessarily to the use of video surveillance in public places. In some states, the courts have recognized a constitutional right to privacy; nevertheless, no cases against a transit agency were located for this digest involving an alleged violation of a state consti- tutional right to privacy because of an agency’s use of video surveillance. Although several federal laws protect individuals’ privacy in some situations, the issue of whether to protect individuals’ privacy rights has been left largely to the states. A few states, such as California, have enacted legislation that authorizes transit agencies to use video surveillance or that regulates the use of video surveillance in other contexts. The Privacy Act of 1974 protects the privacy of individu- als’ data maintained by federal agencies, but no federal statutes, other than the federal Wiretap Act and the SCA, have been identified that are impli- cated by government-owned or privately-owned transit agencies’ use of video and/or audio surveil- lance. Under the federal Wiretap Act, as well as most state wiretap acts, unless one party to a communica- tion consents, the recording or interception of an oral the information is exempt.589 Thus, an agency may waive its FOIA exemption if it freely discloses “confi- dential information to a person without restricting that person’s ability to disclose that information.”590 XII. CONCLUSION Video surveillance is commonly used in public transportation, including by transit agencies, for a wide variety of reasons. Some agencies have adopted policies that address, for example, how they provide notice of the presence of video surveillance and/or explain how long surveillance data are retained. Although a transit agency’s use of video surveil- lance appears to be constitutional, there are privacy risks associated with using video surveillance. A transit agency’s video surveillance of a specific area could be challenged because it violates a statute, a person’s reasonable expectation of privacy, or a person’s common law right to privacy under state law. A transit agency may have a more robust legal defense to any possible privacy claims when the agency is able to show that prior to adopting a video surveillance system, it took steps to minimize any negative effects that the system could have on the public’s “constitutional rights and values.”591 Some legal commentaries and reports argue that video surveillance should be proportional to an agency’s need for surveillance and should adhere to certain core principles as discussed in the digest. In general, although a permanent video surveil- lance system may pose a greater risk to privacy, the courts have upheld long-duration or even perma- nent public video surveillance. Some states or locali- ties and transit agencies, respectively, have laws or polices that limit how long a public agency may retain or archive video surveillance data. Technologies that permit facial recognition and identification and the tracking of an individual also present a greater risk to privacy. Nevertheless, 589 Shell Oil Co. v. IRS, 772 F. Supp. 202, 211 (holding that the IRS was required to release information requested by an oil company under FOIA that an IRS employee had previously read at a public meeting because a public read- ing of the document constituted a waiver of the FOIA exemptions). 590 Patrick Lightfoot, Waiving Goodbye to Nondisclosure Under FOIA’s Exemption 4: The Scope and Applicability of the Waiver Doctrine, 61 cath. u. l. reV. 807, 808 (2012). 591 Guidelines for Public Video Surveillance, supra note 6, at vii, 7, 19, and 25.

43 most likely applies to a claim for an invasion of privacy because of a transit agency’s use of video surveillance. The reason is that the tort of intrusion upon seclusion is based on a victim’s psychological distress caused by the intrusion, not by a public disclosure of information about an individual. However, no cases were located for the digest in which a transit or other agency was held liable for an invasion of privacy based on an agency’s use of video surveillance. As discussed in this digest, numerous transit agencies responding to the survey reported that they use video surveillance data in tort cases brought by and against transit agencies, as well as in acci- dent, criminal, and other investigations. Government-owned transit agencies that retain or archive video surveillance data are subject to their state’s FOIA or equivalent state or local public records disclosure law. State or local laws, however, may allow a public agency to withhold, for example, personal or other data that are exempt from disclosure. or electronic communication is prohibited. However, in some states, all parties to a communication must consent to one party’s recording or interception of a communication. Although a law enforcement agency may obtain a warrant to intercept and/or record an oral or electronic communication, a non-party to a communication is not authorized to record or inter- cept an oral or electronic communication without the consent of the parties to the communication. In general, public employers may monitor work- places and property by video surveillance. Thus, employees must rely on any state statutes that prohibit the use of video surveillance in certain places or argue that they have a reasonable expectation of privacy in particular areas in the workplace. Under federal and/or state law, before an employer imple- ments video surveillance of employees, the employer may have to bargain with its employees or the union. It is possible that in some states, a transit agency could be held liable in tort for an invasion of privacy. The tort of intrusion upon seclusion is the tort that