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25 District of Columbia.334 In other states, there appears to be no provision for a private right of action for a data-breach.335 In some states, no action is permitted against government agencies.336 At least four states exempt government agencies from âenforcement proceedings.â337 Some statesâ statutes provide for the imposition of a civil penalty for a violation of a state statute protecting personal information and/or a violation of a requirement that an agency give notice of a breach of the security of personal information.338 Although the scope of some of the foregoing stat- utes is sufficiently broad to cover video surveillance data collected by a government agency, no cases were located for this digest in which a court has applied a state statute on the collection of data on individuals to a video surveillance system or its data. VII. REGULATION OF ANY AUDIO PORTION OF VIDEO SURVEILLANCE A. Federal Wiretap Act The ECPA amended the federal Wiretap Act so that it applies to the interception of oral and electronic communications339 and created the SCA, discussed in part B, to cover unauthorized access to stored communications and records.340 The federal Wiretap Act341 proscribes the inter- ception of electronic communications, as well as wire and oral communications. The Act applies, inter alia, to any person who (a) intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to inter- cept, any wire, oral, or electronic communication; (b) intentionally uses, endeavors to use, or procures any other person to use or endeavor to use any electronic, mechanical, or other device to intercept any oral communi- cation whenâ (i) such device is affixed to, or otherwise transmits a signal through, a wire, cable, or other like connection used in wire communicationâ¦.342 The Wiretap Act applies to the interception of the audio portion of video surveillance because the monitoring is an interception of an oral communica- tion.343 The Act does not apply to video-only surveil- lance because there is no interception of an oral, wire, or electronic communication.344 A warrant is required for âa continuous video surveillance device [that] can intercept sound.â345 334 Alaska (but not against government agencies), California, Delaware (treble damages and reasonable attorneyâs fees), Louisiana (actual damages), Maryland, Massachusetts (in certain situations), Minnesota, New Hampshire, North Carolina, Rhode Island, South Carolina, Virginia, Washington, and the District of Columbia. See State Breach Notification Laws, supra note 331. See Joerling, supra note 333, at 479 N 63 (citing California Security Breach Information Act, cal. ciV. coDe Â§ 1798.84 (2009); D.C. coDe ann. Â§ 28-3853(a) (2009); N.H. reV. Stat. ann. Â§ 359-C:21(I) (2009); N.C. Gen. Stat. ann. Â§ 75-65 (2007); or. reV. Stat. ann. Â§ 646A.624 (2009); S.C. coDe ann. Â§ 37-20-170 (2008); and tenn. coDe ann. Â§ 47-18- 2107(h) (2009)). 335 See Ga. coDe Â§Â§ 10-1-910â10-1-915 (2017); 815 ILCS Â§ 530/20 (2017) (no specific penalty found that applies to government agencies but a violation constitutes an unlaw- ful practice under the Consumer Fraud and Deceptive Business Practices Act); inD. coDe Â§ 4-1-11-2, et seq. (2017) (no provision located that permitted a civil action or imposed a civil penalty for a violation); N.J. Stat. ann. Â§ 56:8-166 (2017) (although stating that it is âunlawful â¦ to willfully, knowingly or recklessly violate sections 10 through 13 of this amendatory and supplementary act,â no provision located authorizing a cause of action or imposing a specific civil penalty). 336 See haW. reV. Stat. Â§ 487N-3(a) (2017); Maine reV. Stat. Â§ 1349(2)(A) (2017) (provisions on enforcement and for imposition of civil penalties for violations of Maineâs statute on Notice of Risk to Personal Data not applicable to the state). 337 Joerling, supra note 333, at 476 (citing haW. reV. Stat. ann. Â§ 487N-2 (2009); fla. Stat. ann. Â§ 817.5681 (2006); Me. reV. Stat. ann. tit. 10, Â§ 1349 (2008); and tenn. coDe ann. Â§ 47-18-2107 (2009)). 338 alaSka. Stat. Â§ 45.48.080(a) (2017) (stating that an information collector that is a governmental agency is liable to the state for a civil penalty of up to $500 for each state resident who was not notified under AS 45.48.010 - 45.48.090 but total civil penalty may not exceed $50,000); Mich. coMP. laWS Â§ 445.72(14) (2017) (applicable to Â§ 445.72âs security breach requirements and providing that â[t]he aggregate liability of a person for civil fines under subsection (13) for multiple violations of subsection (13) that arise from the same security breach shall not exceed $750,000.00). See Mich. coMP. laWS Â§ 445.72(15) (2017) (stating that â[s]ubsections (12) and (13) do not affect the availability of any civil remedy for a violation of state or federal lawâ); R.I. Gen. laWS Â§ 11-49.2-6(a) (2017) (stating that a breach of the stateâs Identity Theft Protec- tion Act âis a civil violation for which a penalty of not more than a hundred dollars ($100) per occurrence and not more than twenty-five thousand dollars ($25,000) may be adjudged against a defendantâ). 339 United States v. Steiger, 318 F.3d 1039, 1046 (11th Cir. 2003), cert. denied, 538 U.S. 1051, 123 S. Ct. 2120, 155 L. Ed. 2d 1095 (2003). 340 Id. at 1047 (citing 18 U.S.C. Â§ 2701(a)). 341 18 U.S.C. Â§Â§ 2510â2522 (2017). 342 18 U.S.C. Â§Â§ 2511(1)(a)â(b)(1) (2017). 343 United States v. Koyomejian, 970 F.2d 536 (9th 1992), cert. denied, 506 U.S. 10005, 113 S. Ct. 617, 121 L. Ed. 2d 550, (1992), app. den., 2005 U.S. App. Lexis 6396, at *1 (9th Cir. 2005). 344 Steven Hymowitz & David Bendana, Privacy Limi- tations for Electronic Surveillance and Genetic Testing in the Workplace, at 11, American Bar Association (1996), http://apps.americanbar.org/labor/lel-aba-annual/ papers/1999/annual07.pdf (last accessed Aug. 22, 2017). 345 Scott Sher, Continuous Video Surveillance and its Legal Consequences, PLRI Working Papers Series, at 3 (1996), http://gov.uchastings.edu/public-law/docs/plri/video. pdf (last accessed Aug. 22, 2017).
26 Because federal law pre-empts the field of wire- taps, any state law regulating the interception of wire communications must provide safeguards at least as stringent as those in the federal statute.346 The proscription of the interception of oral commu- nication by using a device transmitting radio communications applies both to interstate and intrastate communications without the necessity of showing an effect on interstate commerce.347 In Christie v. Borough of Folcroft,348 employees of the police department alleged that they were subjected to audio and video surveillance in their workplace in violation, inter alia, of the Federal Wiretap Act and the Pennsylvania Wiretap Act.349 In denying the defendantsâ motions to dismiss the Wiretap Act claims, the court held that both the federal and state Acts allow claims by people whose communications have been intercepted but that â[e]vidence of actual interception, and not mere evidence of the installation of devices capable of interception, is required.â350 In Maryland v. Washington Metropolitan Area Transit Authority,351 the plaintiffs, pro se, current or former employees of MV Transportation, Inc. (MV Transportation), a contractor for the Washington Metropolitan Area Transit Authority (WMATA), alleged that MV Transportation regularly moni- tored and recorded their conversations without their consent in violation of federal and state wiretapping laws. A federal court in Maryland held that WMATA, as an instrumentality of three states, was not subject to the Maryland Wiretapping and Electronic Surveil- lance Act. Because WMATA and MV Transportation were subject to federal wiretapping laws,352 the plaintiffs could sue all defendants under 18 U.S.C. Â§ 2520, as well as sue MV Transportation and the individual defendants under Maryland Code Cts. & Jud. Proc. Â§ 10-410. Although the court held that the plaintiffsâ allegations lacked sufficient specificity to state a claim under the wiretap laws, the court granted them leave to amend their complaint.353 Section 2520 of the federal Wiretap Act autho- rizes a civil action against a person or entity violating the Act. Section 2520(a) provides, âAny person whose wire, oral, or electronic communica- tion is intercepted, disclosed, or intentionally used in violation of this chapter [18 U.S.C. Â§Â§ 2510 et seq.] may in a civil action recover from the person or entity, other than the United States, which engaged in that violation such relief as may be appropriate.â Thus, government agencies, other than the United States, including municipalities, may be held liable under Â§ 2520.354 Section 2520 authorizes a plaintiff to seek preliminary and other equitable or declaratory relief and to recover damages, including punitive damages in appropriate cases, reasonable attorneyâs fees, and other reasonable litigation costs.355 In Garza v. Bexar Metropolitan Water District,356 during Garzaâs final four months of employment with Bexar Metropolitan Water District, two of the individual defendants, Olivares and Ruiz, monitored and recorded nearly 100 of Garzaâs telephone conver- sations.357 Garza sued the defendants for damages and injunctive relief for alleged violations of the federal Wiretap Act and the Texas Wiretap Act.358 In ruling on the defendantsâ motion to dismiss, a federal district court in Texas held that government entities other than the United States may be held liable for damages.359 The federal Wiretap Act allows certain good faith defenses under Â§ 2518(7) or a âgood faith determinationâ under Â§ 2511(3); however, the plain- tiff had alleged sufficient facts to overcome the defendantsâ âqualified immunity arguments at this juncture.â360 As for the Texas Wiretap Act, it also defines a person who may be sued under the Act to include a government or a governmental subdivi- sion or agency.361 B. Stored Communications Act The SCA covers âthe content of emails, private Facebook messages, YouTube videos, and so-called metadata, or non-content information, connected to our Internet transactions.â362 Section 2701 of the SCA prohibits the intentional accessing of electronic data without authorization or in excess of oneâs 354 Adams v. City of Battle Creek, 250 F.3d 980 (6th Cir. 2001). 355 18 U.S.C. Â§Â§ 2520(b)(1)â(3) (2017). 356 639 F. Supp. 2d 770 (W.D. Tex. 2009). 357 Id. at 772. 358 tex. ciV. Prac. & reM. coDe ann. ch 13. 359 Garza, 639 F. Supp. 2d at 773 (citations omitted). 360 Id. at 775. 361 Id. 362 Richard M. Thompson, II and Jared P. Cole, Congres- sional Research Service, Stored Communications Act: Reform of the Electronic Communications Privacy Act (ECPA), CRS Report, R44036, at 2, https://fas.org/sgp/crs/ misc/R44036.pdf (last accessed Aug. 22, 2017). 346 State v. Aurilio, 366 So.2d 71 (Fla. 4th DCA 1978), cert. denied, 376 So.2d 76 (Fla. 1979). 347 United States v. Anaya, 779 F.2d 532 (9th Cir. 1985). 348 No. 04-5972, 2005 U.S. Dist. LEXIS 21569, at *1, (E.D. Pa. Sept. 27, 2005). 349 18 Pa. conSt. Stat. Â§Â§ 5701â5775 (2017). 350 Christie, 2005 U.S. Dist. LEXIS 21569, at *35. 351 No. 14-3397, 2015 U.S. Dist. LEXIS 91409, at *1 (D. Md. July 13, 2015). See also, Sewell v. Wash. Metro. Area Transit Auth., No. 16-2456, 2017 U.S. Dist. LEXIS 35800, at *1, 7 (D. Md. March 13, 2017). 352 Maryland, 2015 U.S. Dist. LEXIS 91409, at *8. 353 Id., at *17, 18.
27 authorization.363 Section 2701(a) applies to anyone, except as provided in subsection (c), who âintention- ally accesses without authorization a facility through which an electronic communication service is provided; orâ¦intentionally exceeds an authorization to access that facility; and thereby obtains, alters, or prevents authorized access to a wire or electronic communication while it is in electronic storageâ¦.â364 Communications are in electronic storage within the meaning of the SCA even when âthe storage is tran- sitory and lasts for only a few seconds.â365 Section 2701 prohibits only unauthorized access and not the misappropriation or disclosure of infor- mation.366 All that is required for a violation of the statute is the defendantâs âact of accessing electroni- cally stored data.â367 Thus, the section âoutlaws ille- gal entry, not larceny.â368 A person with authorized access to a database does not violate the section no matter how malicious or larcenous the intended use of that access.369 Section 2707 states, any provider of electronic communication service, subscriber, or other person aggrieved by any violation of this chapter [18 USC Â§Â§2701-2712] in which the conduct constituting the violation is engaged in with a knowing or intentional state of mind may, in a civil action, recover from the person or entity, other than the United States, which engaged in that violation such relief as may be appropriate.370 Thus, government entities are subject to civil liabil- ity under 18 U.S.C. Â§ 2707(a).371 A plaintiff may be awarded equitable or declaratory relief as appropri- ate, damages, a reasonable attorneyâs fee, and other reasonable litigation costs.372 If damages are awarded, the amount is to be for no less than $1,000.373 C. Whether One Party or All Parties to a Communication Must Consent to Audio Surveillance Fifty-nine transit agencies (81.94%) responding to the survey reported that their agencyâs video surveil- lance system also records audio.374 The Milwaukee County Transit System (MCTS) advised that Wiscon- sin is a one-party consent state where only one party must be notified and consent to audio recording. The agency stated that âMCTS is that consenting party.â375 The federal statute and many state statutes require that one party to an oral or electronic communication must consent to its recording or interception. Some state statutes require that all parties must consent. The federal statute provides that â[e]xcept as other- wise specifically provided in this chapterâ¦any person whoâ¦intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communica- tionâ¦shall be punished as provided in subsection (4) or shall be subject to suit as provided in subsection (5).â376 However, it is not unlawful under the statute for a person not acting under color of law to intercept a wire, oral, or electronic communication where such person is a party to the communication or where one of the parties to the communication has given prior consent to such interception unless such communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of any State.377 There are state statutes that are identical or substantially similar to the federal statute.378 363 Sherman v. Salton Max. Housewares, 94 F. Supp. 2d 817, 820 (2000). 364 18 U.S.C. Â§ 2701(a) (2017). 365 Columbia Pictures, Inc. v. Bunnell, 245 F.R.D. 443, 450 (C.D. Cal. 2007) (citation omitted). 366 Therapeutic Research Faculty v. NBTY, Inc., 488 F. Supp. 2d 991, 997â98 (E.D. Cal. 2007). 367 In re Intuit Privacy Litigation, 138 F. Supp. 2d 1272, 1276 (C.D. Cal. 2001). 368 Sherman, 94 F. Supp. 2d at 821. 369 Id. 370 The statute excludes an exception provided in Â§ 2703(e). See Charles Doyle, Congressional Research Ser- vice, Privacy: An Abridged Overview of the Electronic Com- munications Privacy Act, CRS Report, R41734, at 7 (2012), https://www.fas.org/sgp/crs/misc/R41734.pdf (last accessed Aug. 22, 2017) and Department of Justice, âUnlawful Access to Stored Communications - 18 U.S.C. Â§ 2701,â https://www. justice.gov/usam/criminal-resource-manual-1061-unlawful- access-stored-communications-18-usc-2701 (last accessed Aug. 22, 2017). 371 Organizacion JD Ltda. v. United States Depât of Justice, 18 F.3d 91, 94 (2d Cir. 1994) (stating that âin order to give full meaning to the new statutory language, âentityâ must be taken to mean governmental entityâ), cert. denied, 512 U.S. 1207, 114 S. Ct. 2679, 129 L. Ed. 2d 813 (1994). 372 18 U.S.C. Â§ 2707(b)(3) (2017). 373 18 U.S.C. Â§ 2707(c) (2017). 374 See Appendix C, transit agenciesâ responses to ques- tion 13. Eleven agencies (15.28%) do not have systems that record audio. Two agencies (2.78%) did not respond to the question. 375 See Appendix C, Milwaukee County Transit Systemâs response to question 22. 376 18 U.S.C. Â§ 2511(1)(a) (2017). 377 18 U.S.C. Â§ 2511(2)(d) (2017) (emphasis supplied). 378 ariz. reV. Stat. ann. Â§ 13-3005(A)(1), (2); colo. reV. Stat. Â§ 18-9-304(1)(a) (2017); conn. Gen. Stat. Â§ 53a-187(a) (2017); Del. coDe ann. tit. 11, ch. 24, Â§ 2402(c)(4) (2017); inD. coDe ann. Â§ 35-31.5-2-176 (2017); ioWa coDe ann. Â§ 727.8 (2017); MiSS. coDe ann. Â§ Â§ 41-29-531(e) (2017); Mo. reV. Stat. Â§ 542.402(2)(3) (2017); neb. reV. Stat. Â§ 86-290(2)(c) (2017); N.J. Stat. ann. Â§ 2A:156A-4(d) (2017); N.M. Stat. ann. Â§ 30-12-1(E)(3) (2017); N.C. Gen. Stat. ann. Â§ 15A-287(a) (1) (2017); N.D. cent. coDe Â§ 12.1-15-02(3) (b) and (c) (2017); okla. Stat. ann. tit. 13 Â§ 176.4(5) (2017); R.I. Gen. laWS Â§ 11-35-21-(c)(2) and (3) (2017); tenn. coDe ann. Â§ 39-13- 601(a)(1)(D)(4) and (5) (2017); tex. Penal coDe Â§ 16.02(c)(3) (A) and (4)(A) and (B); Va. coDe ann. Â§ 19.2-62(B)(2) (2017); W. Va. coDe Â§ 62-1D-3(e) (2017); WiS. Stat. ann. Â§ 968.31(2) (b) and (c) (2017); and Wyo. Stat. ann. Â§ 7-3-702(b)(iv) (2017).
28 On one hand, when a statute allows one party to consent to the recording or intercepting of a commu- nication that is otherwise lawful to record or inter- cept, the courts have agreed that consent by one party to the communication is sufficient.379 On the other hand, a non-partyâs recording or interception of a communication without the consent of any party to the communication has been held to violate the law.380 New Jerseyâs statute âmirror[s] the federal Wire- tapping Act and fail[s] to prohibit the interception of images.â381 In Kinsella v. Welch,382 a New Jersey appel- late court held that N.J. Stat. Ann. Â§ 2A:156A-3(a) applies only to audio communications, and thus does not cover the video component of a recording. More- over, when one of the parties to a communication has given prior consent to an interception of the communication, it is not unlawful for the other party to intercept (e.g., record) the oral communication.383 In Audrenreid v. Circuit City Stores, Inc.,384 the plaintiff alleged that the defendant subjected the plaintiff to video surveillance in violation of the federal and Pennsylvania Wiretapping and Electronic Surveillance Control Acts, 18 U.S.C. Â§ 2510, et seq. and 18 Pa. C.S. Â§ 5701, et seq.385 However, the court held that the statutes applied to a conversation and the âactual hearing of sound.â386 Thus, neither statute applied because the camera captured only images. In regard to recording or intercepting oral or elec- tronic communications, some state statutes require the consent of âall parties.â387 For example, California law prohibits a person âintentionally and without the consent of all parties to a confidential communi- cation [from using] an electronic amplifying or recording device to eavesdrop upon or record [a] confidential communicationâ¦.â388 Although the term person applies to âan individual acting or purporting to act for or on behalf of any government or subdivi- sion thereof, whether federal, state, or local,â the statute âexcludes an individual known by all parties to a confidential communication to be overhearing or recording the communication.â389 In Illinois, a person commits the offense of eavesdropping when he or she knowingly and intentionally: (1) Uses an eavesdropping device, in a surreptitious manner, for the purpose of overhearing, transmitting, or recording all or any part of any private conversation to which he or she is not a party unless he or she does so with the consent of all of the parties to the private conversation; (2) Uses an eavesdropping device, in a surreptitious manner, for the purpose of transmitting or recording all or any part of any private conversation to which he or she is a party unless he or she does so with the consent of all other parties to the private conversation; (3) Intercepts, records, or transcribes, in a surreptitious manner, any private electronic communication to which he or she is not a party unless he or she does so with the consent of all parties to the private electronic communication; â¦ or (5) Uses or discloses any information which he or she knows or reasonably should know was obtained from a private conversation or private electronic communication in viola- tion of this Article, unless he or she does so with the consent of all of the parties.390 In Pennsylvania, it is not unlawful for â[a] person, to intercept a wire, electronic or oral communica- tion, where all parties to the communication have given prior consent to such interception.â391 Addi- tionally, the City of Pittsburgh, Pennsylvania Code 379 State v. Okubo, 651 P.2d 494, 497 (haW. ct. aPP. 1982 (holding that âwarrantless electronic recordings of the audio portion of the conversations did not violate [Hawaiian law] because they were made with the consent of at least one of the parties to the conversationsâ), aff âd, 67 Haw. 197, 682 P.2d 79 (1984); DâOnofrio v. DâOnofrio, 344 N.J. Super. 147, 780 A.2d 593, 599 (N.J. App. 2001) (holding that the plaintiff could consent on behalf of his children when necessary to protect the children from harm). 380 Miller v. Talley Dunn Gallery, LLC, 2016 Tex. App. Lexis 2280, at *1, 26â29 (Tex. Ct. App. 2016). 381 Fiore & Weinick, supra note 118, at 544 & n.181 (citing The New Jersey Wiretapping and Electronic Control Act, N.J. Stat. Ann. Â§Â§ 2A:156A-1 to -34 (West Supp. 2007)). 382 362 N.J. Super. 143, 827 A.2d 325 (App. Div. 2003). 383 N.J. Stat. ann. Â§ 2A:156A-4(d). 384 97 F. Supp. 2d 660 (E.D. Pa. 2000). 385 Audrenreid, 97 F. Supp. 2d at 661. 386 Id. at 663. 387 See conn. Gen. Stat. Â§ 31-48b(d) (2017) (âNo employer or his agent or representative and no employee or his agent or representative shall intentionally overhear or record a conversation or discussion pertaining to employ- ment contract negotiations between the two parties, by means of any instrument, device or equipment, unless such party has the consent of all parties to such conversa- tion or discussion.â) (emphasis supplied); Ga. coDe ann. Â§ 16-11-62(2)(B), but see Ga. coDe ann. Â§ 16-11-66(a) (2017); MaSS. ann. laWS, ch. 272, Â§ 99(B)(4) (âThe term âintercep- tionâ means to secretly hear, secretly record, or aid another to secretly hear or secretly record the contents of any wire or oral communication through the use of any intercepting device by any person other than a person given prior authority by all parties to such communicationâ¦.â) (emphasis supplied); and Mich. coMP. laWS Â§ 750.539c (2017) (âAny person who is present or who is not present during a private conversation and who willfully uses any device to eavesdrop upon the conversation without the con- sent of all parties thereto, or who knowingly aids, employs or procures another person to do the same in violation of this section, is guilty of a felony punishable by imprison- ment in a state prison for not more than 2 years or by a fine of not more than $2,000.00, or both.â) (emphasis supplied). 388 cal. Pen. coDe Â§ 632(a) (2017) (emphasis supplied). 389 cal. Pen. coDe Â§ 632(b) (2017) (emphasis supplied). 390 720 ILCS 5/14-2(a)(1)â(3) and (5) (2017) (emphasis supplied). 391 18 Pa. conSt. Stat. Â§ 5704(4) (2017).