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Security and Surveillance Q&A

(Cameron G. Shilling was a contributor for this NH Business Review article published on February 28, 2020.)

From reducing liability to monitoring a business, security and surveillance is an important element in a successful operation. However, there are also legal issues to consider.

We reached out to a pair of experts to learn how business owners can benefit from a high-quality, reliable security and surveillance system, and what legal questions need to be addressed.

Our experts:

• Timothy Surprenant, President, Tasco Security Inc. tascosecurity.com

• Cameron G. Shilling, Chair, Information Privacy and Security Practice Group, McLane Middleton, Professional Association. mclane.com

Q. What are the most important features of a security system?

Surprenant: “Any system should be able to provide high-quality recordings with built-in watermarks to prevent alteration of video files. Even if the recording is cloud-based, in anticipation of internet interruptions, a local backup should always be used. Also, a well-designed mobile viewing app; lots of memory for video storage – the higher a camera’s resolution and frame rate, the larger the video files; and high-resolution video, even in low lighting conditions (where applicable).”

Q. What areas of threat or risk can be mitigated with the right surveillance system?

Surprenant: “Frivolous lawsuits involving alleged accidents are less likely to occur. Conversely, camera systems can help reconstruct real accidents. Confirmation of environmental and life safety alarms (for example: fire, high/low water, high/low temperature, high/low humidity, etc.), mitigation of unwanted employee behaviors and improvement of customer service activities.”

Q. What are the pitfalls of a “do-it-yourself” system?

Surprenant: “Illegal practices, such as inadvertently recording audio or video without proper consent. Systems that can only create evidence clips in common video formats without a watermark that can be easily altered, and are not admissible in court.

Also:

• Inferior, consumer grade equipment.

• No recourse when the system fails, poor warranties and non-existent tech support.

• No local recording.

• DIY systems often promise ‘HD Video.’ ‘HD’ has no well-defined attributes. Instead, rely on camera specs that give actual resolution, compression and frame rate values.”

Q. What other benefits can a surveillance system provide?

Surprenant: “Reduced liability; accident reconstruction; environmental/fire alarm confirmation; monitoring of workplace environment and processes (especially in factories and assembly lines) to aid in productivity; remote monitoring of customer areas, for instance, getting fresh cups/mugs from a kitchen, while keeping an eye out for new customers arriving; Integration of point-of-sale or banking software; analytics – such as people counting, dwell time, entering a defined area.”

Q. What would be your No. 1 recommendation for someone considering implementing a security or surveillance system?

Surprenant: “Have a security audit, performed by a professional, then have the system installed by a respected security company who can provide references and who has a competent staff of bonded installers. In order to provide good service, the security company should be local, and be able to provide timely support.”

Q. Where is the line drawn between appropriate employer protection and invasive monitoring?

Shilling: “Employers have a legitimate need to provide a safe workplace and protect their information and assets. Employees have a similarly legitimate interest in privacy of their personal affairs, including at work. Video surveillance is one measure that employers can use to accomplish this, but it also presents a real potential to intrude on employee privacy.

“Each company needs to assess whether video monitoring is necessary or appropriate for its business operations and various work areas. No one-size-fits-all template applies. Instead, certain general principles exist to balance company security with individual privacy.

“For example, the following areas almost always can be monitored using video surveillance, because such areas pose threats to the security of information and assets: public and employee entries and exits; exteriors of buildings and parking lots; areas where retail goods are sold and registers; and public reception and waiting rooms.

“The following are examples of areas that typically can be monitored using video surveillance, if the company believes that such monitoring is appropriate for its business, unless a particular state law prohibits doing so: hallways used by visitors and employees, including hallways outside of bathrooms, locker rooms and changing rooms; general working areas, including offices, cubicles and shared work spaces (e.g., accounting and finance, production, inventory, etc.); employee break areas; and public areas of company health centers. However, companies should ensure that such monitoring does not intentionally or inadvertently record private matters, such recording of the screens of hand-held devices and computer workstations. Companies can adopt more effective measures to address those concerns, such as prohibiting the use of personal electronic devices as work (if appropriate) and monitoring electronic communications on company devices.

“Lastly, the following are examples of areas that almost always cannot be monitored using video surveillance, unless doing so is explicitly permitted and necessary: bathrooms, locker rooms and changing rooms; mothers’ nursing rooms; and examination rooms of company health centers.”

Q. What legal restrictions currently exist regarding workplace monitoring?

Shilling: “Certain wiretap laws (including New Hampshire’s law) prohibit the recording of audio without the consent of all parties to the recording. Since some video surveillance technology includes the capability to record audio, companies need to ensure either that they comply with the wiretap law or that the audio capability is entirely deactivated (including not capturing audio, no matter how transient). While such consent under most wiretap laws can be either express or implied, in light of the intrusiveness of audio recording, most companies choose not to do so unless it is necessary to protect their business interests. And companies that engage in audio recording commonly obtain signed consent from employees and implied consent from others through prominent posting of signage in all areas subject to audio recording.

“In addition to wiretap laws, broad new privacy laws are emerging that impose obligations on companies that collect and use personal information about individuals, including images and video recordings of them. Such laws require companies to notify individuals about the personal information collected and used about them before doing so, obtain consent from individuals for the collection and use of certain sensitive personal information (such as health information), and afford individuals certain rights with respect to personal information, including the right to restrict the company’s use of their personal information and require the company to delete all personal information about them. Given the strictness of these regulations, companies that engage in video surveillance will need to ensure that they have appropriate policies and procedures in place to comply with these emerging privacy laws.

“Many states have adopted specific laws that impose obligations on companies particular to certain video surveillance circumstances, such as surveillance of employee break rooms. Those laws apply whenever companies have facilities or employees working in states that have adopted such laws. Companies need to ensure that the video surveillance they conduct complies with the particular laws of each state in which the surveillance occurs.”

Q. What suggestions do you have that would help employers avoid legal and cultural challenges and issues when video surveillance is being used in a workplace?

Shilling: “Companies should implement a series of steps, depending on the nature of their business operations and culture of their workplaces. In all instances, companies should adopt written video surveillance policies and train employees about their policies, and should post appropriate signage wherever video surveillance occurs on their premises. Companies also may want to consider measures such as the following: involving employees in creating the video surveillance policy; having secure locations for employees to leave personal devices and other valuables during work hours; having visitors sign an acknowledgement of video surveillance whenever they enter the premises; and requiring visitors to leave personal devices in a secure location while they are on company premises.

“To comply with emerging privacy laws, companies should do the following: adopt a written privacy policy intended for internal use and employees as well as an external privacy policy intended for visitors, the public and other third parties that describe how the company collects and uses personal information (including images and video recordings of individuals) and the rights of individuals with respect to such information; and obtain consent from employees and others to the extent the company obtains sensitive personal information via video surveillance.”

Q. If an employee or someone else is ‘caught,’ doing something illegal or inappropriate on workplace video, what steps need to be taken at that point?

Shilling: “Since one main purpose for video surveillance is to deter and remediate illegal and inappropriate conduct, companies need to ensure that such evidence is preserved for an internal investigation, civil litigation, or law enforcement purpose. If a company discovers that it has captured a video recording of illegal or inappropriate conduct, it should preserve the original and all copies of the recording, and immediately contact its attorneys to determine the appropriate next steps.”

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