The Legal Risks Of External Surveillance

Attorney Mark D. Rasch is the former head of the U.S. Justice Department's computer crime unit and today is a lawyer in Bethesda, Md., specializing in privacy and security law.

The cooperation of retailers like Lord & Taylor in the Boston bombing investigation proved to be invaluable and provided the most important clues to catching the two terrorism suspects. But retailers should be wary about using that incident as an invitation to increase the amount of surveillance that they conduct both inside and outside of their stores. Video surveillance, although a very powerful tool for certain things, can lead to loss of customer confidence, and even to liability..

In the United States, it is generally presumed that the use of video surveillance technology in non-"private" places ("private" as in bathrooms and changing rooms) is perfectly legal. Unlike audio surveillance, which is regulated by federal and state law, there appears to be little regulation of video surveillance technologies. Retailers regularly employ them for loss prevention purposes, inventory management, and to defend themselves in liability lawsuits such as workers’ compensation claims or "slip and fall" claims by customers. Video surveillance technology can also be useful in tracking customer behavior and traffic patterns; footfall analysis; to evaluate the effectiveness of advertising or displays; and even to evaluate the gender, age and behavior of customers.

What the Boston case demonstrates is that video surveillance technologies deployed by retailers can also be useful to third parties like law enforcement, or even intelligence agencies. Although Lord & Taylor was certainly happy to cooperate with an investigation of a bombing across the street from its office on Boylston Street, if the CIA, NSA or a foreign intelligence agency were to come to them and request copies of videotapes, it's not clear that the retailer would want to associate itself as an agent of the intelligence communities. Moreover, to the extent that the request for video surveillance data becomes more ubiquitous, retailers will be spending tens of millions of dollars not only on the technology but also on data analysis and data capture, and in compliance costs when turning the relevant data over to law enforcement or intelligence communities.

Most current video surveillance technology is not particularly useful for law enforcement purposes. It is relatively low-definition and, because of the volume of data collected, difficult to sift through and difficult to understand. Indeed, in the Boston case, the FBI and Boston police released what they believed to be the highest-quality video of the two suspects to the public in order to get their assistance in identifying these individuals. Even the suspects' roommates and best friends could not identify them from these videos.

But video surveillance technology is getting better, and getting smarter, and that may not be a good thing for retailers. Among the trends associated with video technology are increasing use of high definition Internet protocol-based cloud stored and remotely monitored video surveillance. This means that high-quality video, often capturing a 360-degree field of view, is being pumped in real-time over the Internet to offshore, where it can be monitored in bulk. Artificial intelligence programs, either on the video capture devices themselves, or using data analytics, help the viewer identify the types of behavior or characteristics they're looking for.For retailers, this might be looking for patterns of purchasing or traffic analysis. It may also include identifying children who are left alone, or potentially children who are abducted, and sending out an automated "Amber alert" in those cases. In cases like the Boston bombing, it could include technology that will identify abandoned luggage, backpacks or other items that might pose a threat. Many companies are now offering video surveillance as a service, which may include such smart technologies as well.

For retailers, there are several liability issues. First, unlike with website privacy policies, it is not clear how and when consumers "consent" to the video surveillance. As surveillance becomes more intimate, more detailed, and we make greater use of the results of that surveillance, the likelihood of consumer revolt increases. While some stores place notices that the areas are under potential video surveillance, this is typically not done to obtain consumer consent but rather to deter theft.

So just what does the retailer collect, in what detail, and what do they do with it? As facial recognition technology improves, and large databases of stored information become more affordable, companies should consider informing their shoppers exactly what they're collecting, what they're doing with that data, and why.

Although most consumers would happily accept video surveillance to prevent shoplifting, or identify those engaged in child kidnapping, they would likely be upset if they found their own behavior submitted to “America's Funniest Home Videos” without their consent. Although occasional cooperation with law enforcement is not only acceptable but should be encouraged, retailers need to avoid both the perception and the reality of their becoming agents for law enforcement.

Many cities use video surveillance technologies on street corners and highways as a law enforcement tool. Companies should resist the urge to voluntarily become part of a mesh network of tens of thousands of video cameras, where they become agents of the police in capturing video for law enforcement purposes. Not only would this create legal liability and blur the line between retailers and the police, but it also would create a situation where customers might be afraid to go shopping for fear of being arrested for an outstanding parking ticket.

Once retailers collect and store massive amounts of data through video surveillance, they can become the "go to" place for information about people's location and behavior. A disgruntled wife might subpoena the video surveillance logs of Tiffany and Co. to catch the husband purchasing jewelry for a girlfriend. Similarly, while federal law might protect records related to book purchases or video rentals, it's not clear that the federal law would protect video surveillance records in a bookstore or video store.

Video surveillance records also become "documents" subject to discovery and litigation of all kinds. If the company is sued for employment discrimination, unfair practices, unsafe conditions, OSHA violations, or just about anything, the most likely thing to happen is for the "documents" of that company to be subpoenaed either by a private litigant or by some government agency.

We typically think of documents as being paper records or maybe email communications. But video surveillance records, particularly if they are stored for a long period of time, are also documents under the law and must, if relevant, be retained and produced. Even if there's nothing incriminating on these records, because of the difficulty currently searching them, it may take hundreds or thousands of hours simply to look through them for discoverable information. And it may be discoverable information about things you hadn't thought about.

For example if you are subpoenaed for any records indicating meetings between your company and a competitor (such as in an antitrust investigation), the video records showing the competitors walking into the office would be such a record discoverable under the law. Remember, for video records, like any other records, the more you keep, the more you have to disclose. The rule of thumb for video surveillance records is to create them as necessary for business records, make sure consumers have an adequate understanding of what you're doing, and don't do anything stupid with them.

Keep them for as long as you need them for business purposes, and then get rid of them. Another rule of thumb: If there's anything you're doing with the video records that you are keeping secret because you're afraid that consumers wouldn't like it, stop doing it. You're allowed to videotape people because, in some way, they have consented to it. If you're doing things with the video that you don't think they would've consented to, then it's probably wrong and you probably have liability.

Video surveillance is an effective tool when used properly. You can even save lives. But as in all other things, let's be careful out there.

If you disagree with me, I'll see you in court, buddy. If you agree with me, however, I would love to hear from you.