LEGAL GUIDE
Written by attorney Andrew Daniel Myers | Jun 5, 2010

Video Surveillance - When Is It Legal?

There have been numerous cases on this subject. One involved an elementary school in Conway, NH, where a hidden video camera was installed in a classroom after multiple thefts. In a little twist to the case, they hid an envelope containing cash in the teacher's desk. Sure enough, two dollars disappeared from the envelope. The videotape was viewed. It showed the head maintenance man walking in, going through the drawers, and removing something from the envelope. Charged with theft, he moved to suppress the video. He claimed it was an unconstitutional search without a seizure, violating both the New Hampshire and United States Constitutions. The district court granted his motion to suppress.. On appeal, the issue was whether the employee had a reasonable expectation of privacy in the place searched. There are cases that hold that a reasonable expectation of privacy exists in an area given over to an employee's exclusive use. These areas would include desks and file cabinets not shared with any other employees. But, the less private a work area, and the less control an employee has over that work area, the less likely any reasonable expectation of privacy.. In this case, the employee did not have exclusive use and control of the room. His job required him to go there to supervise other custodians. Classrooms are open to students and school staff. It was not his personal space. So, the court concluded that the employee had no reasonable expectation of privacy. In State v. McLellan, decided in 1999, the N.H. Supreme Court held that the surveillance camera violated no constitutional right. In Massachusetts, there's the Salem State College employee who sued his employer when she discovered there was a hidden video camera in the back of the office, where she changed clothes and applied sunburn medication to her upper chest area. This was a business development program at the college. The office was in downtown Salem, MA with a large plate glass window. . When a former client got in after hours, management hid a video camera inside a light fixture in the rear of the office. When the receptionist got severe sunburn on her chest and neck, she went to the rear work area, unbuttoned her blouse and applied a prescribed ointment several times a day. She did this when no one was around, when no clients or visitors were expected. Sometimes she also changed clothes in the back before and after regular hours when she was alone. . Again, the issue was whether the employee had a reasonable expectation of privacy. The court said that means the employee must have an actual expectation of privacy, and the expectation must be one which society recognizes as reasonable.. Generally, there's less of a privacy expectation in an office than there is in a residence. This office was open to the public during the day. Patrons were not required to check in. Many volunteers and employees had keys. . Even if the employee thought she was alone, there was no guarantee. So, in Nelson v. Salem State College decided in 2006 by the Massachusetts Supreme Judicial Court, there was no reasonable expectation of privacy in the office and a hidden video camera was OK. . Where surveillance cameras are installed in open work areas and offices, they generally don't violate a constitutional privacy right. Unless it is a personally exclusive area, or an area where we can truly and reasonably expect privacy.

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This answer is provided for informational purposes only. Legal advice can only be given in an office appointment by an attorney licensed in your jurisdiction with experience in the area in which your concern lies.

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