In the wake of 9/11, CCTV and other video surveillance devices proliferated in California and across the U.S. In many cases, such as in banks or prisons, the need for these cameras is obvious. At the same time, corporations, private investigators and voyeurs may violate privacy rights in their use of video surveillance.
For this reason, California law limits and regulates video surveillance. In some contexts, however, the courts extend considerable leeway to electronic eavesdroppers.
Federal Vs. California Constitutional Law
Unlike the U.S. Constitution, the California Constitution contains an explicit guarantee of privacy in Article I, Section 1 Declaration of Rights. Its courts have applied this protection to the workplace, schools and the state government. For this right to be violated, video surveillance must fulfill three criteria:
- It constitutes an intrusion.
- It intrudes in a location or context where there is a reasonable expectation of privacy.
- It outweighs other interests by the gravity of the alleged violation.
A good example of a constitutional violation would be if your boss installed a hidden camera inside the toilet stall of a workplace restroom. That would be a location where privacy is assumed, and the location could not be justified as a security risk, as opposed to near a cash register.
Two-Party Consent Rule for Recording
Under federal law, a conversation or other encounter may be recorded as long as one person to the conversation consents to the recording. However, California requires the consent of both parties to the recording of a two-part conversation in any manner, including videotape, assuming the videotape also includes audio.
Violation of this law is punishable under California Penal Code Sections 631 and 632. A conviction for a first offense of unlawful electronic eavesdropping is punishable by a fine of up to $2,500 and up to one year in jail. Recording a conversation – as opposed to simply unlawfully listening in – and disclosure of the resulting recording or footage carries a separate penalty. California Penal Code Section 637.2(a) permits a victim of any of these violations to recover punitive damages of up to three times the amount of actual damages in a civil suit against the defendant.
Surveillance of Public Areas
By 2009, 37 cities in California had established video surveillance systems for law enforcement agencies to monitor activity on public streets. Under the California Public Records Act, private citizens have the right to access any of the video surveillance footage. As a result, for some period of time, there could be a publicly available visual record of your outdoor movements and activities that could be accessed by anyone at any time.
Surveillance at Home
Video surveillance technology has expanded considerably in recent years. The end result is that consumers can easily access high quality video recording and monitoring equipment and have a plethora of options for surveillance at home. So-called nanny cams and home security systems are easily accessible even to individuals with no technical expertise, and they are legal in California.
That being said, the two-party consent rule continues to apply. So if the nanny cam in the living room captures and records a conversation between your child's after-school caregiver and another individual, the recording is unlawful unless both participants have consented. This rule generally applies to a private conversation, such as a telephone call taken in private.
When the technology is used solely as personal protection and not for intruding or spying on other people's activities, the use of these systems is generally lawful. Additionally, if there is no audio recording component in the system, there should be no legal issue.
Surveillance in the Workplace
California law prohibits employers from recording or viewing employees, guests, customers and contractors in any location where the individual would have a reasonable expectation of privacy. Such locations include restrooms, locker rooms and private changing areas. Employers may be exempt from this prohibition if the surveillance is conducted solely in locations where access is controlled and monitored by the business and used for the purpose of counting cash.
Surveillance of Internet Cafes
In 2004, the city of Garden Grove passed an ordinance that was codified at Title 8, Chapter 8.82, Section 8.82.020(H). This ordinance requires cyber cafes to install video surveillance systems. Further, the cafes are required to record the activity and actions of patrons who use their computer terminals and to monitor all areas of the premises besides the bathrooms and office. The surveillance system is subject to inspection by local law enforcement and all footage must be preserved for a minimum of 72 hours.
The law was challenged under Article I of the California Constitution, but the law was upheld by the state court of appeals. Among other things, the court argued that patrons lacked a reasonable expectation of privacy in these establishments.
- Stanford Law School: California Court of Appeal Upholds Video Surveillance Obligation for Cyber Cafes
- Ars Technica: Video Surveillance Raises Privacy Concerns in California
- ABC10: Home Surveillance and Nanny Cams Are Legal in California but There Are Gray Areas
- SHRM: Recording Communications and Surveillance Laws by State
- California Legislative Information: Penal Code Sections 630 et seq.
- QCode: Garden Grove CA Code of Ordinances