In the wake of 9/11, CCTV and other video surveillance devices have proliferated in California and elsewhere. In many cases, the need for these cameras is warranted such as in a bank or prison. At the same time, corporations, private investigators and plain voyeurs have violated privacy rights in their use of video surveillance. For this reason, California state law limits and regulates surveillance in several contexts. In other contexts, however, the courts have given significant 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 of its “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: 1) It constitutes an intrusion. 2) It intrudes in a location or context where there is a reasonable expectation of privacy. 3) 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 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).
Surveillance of Public Areas
By 2009, 37 cities in California have established video surveillance systems for law enforcement agencies to monitor activity on public streets. As the American Civil Liberties Union notes in its report “Under The Watchful Eye,” few of these cities have privacy policies to regulate the use of these cameras. Furthermore, under the California Public Records Act, private citizens have the right to access any of the video surveillance footage. As a result, there would be a public record of your outdoor movements and activities that could be accessed by anyone at any time.
Surveillance of Internet Cafes
In 2004, the city of Garden Grove passed an ordinance requiring cyber cafes to install video surveillance systems for recording 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 people in a retail establishment lacked a “reasonable expectation in privacy.”
Consent to Videotape
Under federal law, a conversation or other encounter may be videotaped as long as one person consents to the recording. However, California has expanded the law to both parties. As a result, if you wanted to interview a celebrity in a private location, he or she would need to consent to being taped before you could proceed. Violation of this law is punishable under Cal. Penal Code §§ 631, 632. A first offense of electronic eavesdropping is punishable by a fine of up to $2,500 and up to one year of jail. Recording and disclosure of footage carries a separate penalty. Under Cal. Penal Code § 637.2(a), any victim of these violations can recover punitive civil damages of up to three times the amount of actual damages.