For some people, it is unsettling to read the Pentagon is funding research into a program, Space-based Machine Automated Recognition Technique, looking to use AI to monitor all human activity around the globe in real-time.2
If it is as billed, the program resembles a back-to-the-future look exemplified by the dystopian novels of George Orwell’s “1984”3 or Aldous Huxley’s “Brave New World.”4
However, we submit the unsettling nature of government surveillance is not as threatening to personal privacy and freedom as is the current wave of private enterprise’s foray into visual and audio surveillance. The presumed 4th amendment to the U.S. Constitution protections respecting electronic surveillance (deemed a search under the Fourth Amendment), does not apply to private activity if the government is not involved.
However, various states have enacted laws to circumscribe the private use of surveillance devices. For example, Georgia law states it is unlawful for “Any person, through the use of any device, without the consent of all persons observed, to observe, photograph, or record the activities of another which occur in any private place and out of public view;…”5
Georgia does make an exception “For an owner or occupier of real property to use for security purposes, crime prevention, or crime detection any device to observe, photograph, or record the activities of persons who are on the property or an approach thereto in areas where there is no reasonable expectation of privacy;…” 6
Similarly, an exception is made for residential homeowners and renters “To use for security purposes, crime prevention, or crime detection any device to observe, photograph, or record the activities of persons who are within the curtilage of the residence of the person using such device. A photograph, videotape, or record made in accordance with this subparagraph, or a copy thereof, may be disclosed by such resident to the district attorney or a law enforcement officer and shall be admissible in a judicial proceeding, without the consent of any person observed, photographed, or recorded; . . . ”7
What is mildly troublesome with the underlined passage in the preceding paragraph is that the same language is not provided in another section relating to the similar rights of an owner or occupier of [nonresidential?] real property.8 Does this mean if a nonresidential property owner turns over recorded evidence of an intruder to a law enforcement officer without the consent of the intruder, the intruder may have a claim of invasion of privacy?
The likely answer to a putative claim of an intruder or other person for invasion of privacy is if the cameras are not installed in an area where a person has a reasonable expectation of privacy, the installation of a camera will not be an invasion of privacy. This leads to the question of what are the areas where a person has a reasonable expectation of privacy?
Typical off-limit areas are bathroom stalls or areas where people change clothes (locker rooms). Areas such as swimming pools, tennis courts, or entrances and exits to the clubhouse are not areas where a person would have a reasonable expectation of privacy.
Under current law, to establish a reasonable expectation of privacy, a person must establish two things: that the individual had a subjective expectation of privacy; and that that subjective expectation of privacy is one that society is prepared to recognize as reasonable. If either element is missing, no protected interest is established.
Still to be resolved, however, is how do private citizens and entities protect themselves from undesired, intrusion into their private property or activities? We are now in an age of largely unregulated drone surveillance. Recently, squadrons of drones have been observed over the skies of Eastern Colorado without local law enforcement having a clue as who is responsible for the drone activity.9
If these types of drone activities are not governmental, it may be our concerns over the anxiety of government surveillance are not of as immediate a concern as are surveillance originating with private industry or persons.
Homeowner associations, other associations, and clubs who own or occupy and operate property are buying into privately funded and furnished surveillance cameras and software to spy on anyone entering their curtain of influence.10 The association purchases or leases the surveillance equipment from a private vendor. The vendor may offer to provide cloud or network backup and storage of photographic data captured by the equipment. Often, data is shared through networks with the local police department if found to be indicative of criminal activity. A vehicle license plate may reflect a stolen vehicle or one involved in a traffic violation.11
Suppose a private club management employee is conducting evening video security surveillance and picks up a video of two unmarried persons in flagranto delicto 12 in the outdoor adult-only area adjacent to the club’s swimming facilities. What course of action, if any, is the club manager legally justified in pursuing? Is the engaged couple comprised of club employees, members, or a mixture of the two classifications? Does the club have a policy concerning how to address video results? Is the area where the event occurred one in which at nighttime the participants should reasonably expect privacy? Does the club prohibit access to the pool complex after dark?
We suspect most private clubs are not particularly forthcoming respecting the publication of the reasons for video and audio surveillance. We have reviewed many club rules and have not found much if anything pertaining to the use of cameras and other surveillance tools and their purpose or on whom they may be used. When seeing security cameras adjacent to the club entrance, most likely assume they are present to identify trespassers. Are we then surprised when we discover the cameras are also there to spy on members and employees?
Certainly, it is prudent if the club is to employ surveillance equipment, it should include in its policy pronouncements the purpose of the equipment, how it is to be employed, and whether members and employees may be subject to the surveillance. Also, the club rules should specify that members on behalf of themselves, family, and guests, agree the presence and use of the surveillance equipment is not an infringement of their privacy rights; and there are no places in the club where a reasonable expectation of privacy is valid [except for named locations].
Video cameras generally should not be placed in areas where there is a reasonable expectation of privacy, e.g., bathroom stalls, dressing rooms, or locker rooms. However, even if your state forbids the use of surveillance cameras in dressing rooms, most states enforce informed consent laws. This means that dressing room cameras are allowed, but it may be legally required to inform those entering the area of the presence of monitoring equipment, usually by way of conspicuous signage.13
The question whether the club should erect signs disclosing the presence of security cameras is a matter of practical debate. Some believe the sign itself may be a deterrent to criminal activity. Generally, except in those states mandating disclosure, there is no legal requirement to post signs indicating the presence of surveillance equipment. However, state laws differ and the club should check with counsel to ascertain if there exists a signage requirement.14
In a prior blog,15 we addressed the use of drones on club property. However, in that blog, we did not address the potential privacy aspects of drone use by the property owner. If the club employs drones for security purposes, it might be useful to reference the use in the club’s rules so that members, their families, and guests are aware of and acquiesce in drone surveillance.
In summary, a club using surveillance equipment is cautioned to consider all the aspects attendant upon its use and to document these aspects in either the club’s policy manual or rules. The policies and rules should be formally adopted by the club’s governing board and publicized on the member-access side of the club’s website.
Fred L. Somers, Jr., P.C.
Atlanta, GA. 30338
1. By Fred L. Somers, Jr., Esq. This blog is designed for general information only. The information presented at this site should not be construed to be formal legal advice or the formation of a lawyer/client relationship. The author of this blog is not certified by any state agencies or boards of legal specialization. This blog may constitute attorney advertising in some jurisdictions.
3.Secker & Warburg (1949)
4.Chatto & Windus, London (1932)
5. O.C.G.A. §16-11-62(2)
6. O.C.G.A. §16-11-62(2)(B)
7. O.C.G.A. §16-11-62(2(C)
8. O.C.G.A. §16-11-62(6)
See The Risks and Rewards of Installing Security Cameras by Joseph C. Larkin, Esq. NewsLetter_LLH_Spring2019.pdf (luederlaw.com)
10.I.e., sexual intercourse.
11. If I Put Up Surveillance Cameras, Do I Need to Post a Sign? States That Allow Cameras in the Dressing Rooms (legalbeagle.com) https://legalbeagle.com/7464756
12. Should a Country Club allow Model Aircraft Drones? By Fred L. Somers, Jr., P.C. (November 26, 2017)