A DISCUSSION OF LAW AND JOURNALISM

I Spy…a Camera in the Bathroom?

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By Sarah Berent

We can all agree that when using a public restroom, we expect a certain level of privacy. So spotting a camera aimed straight at a toilet will be disturbing. Even more so if you first discover the camera on your way out of the bathroom.

According to a recent news article, patrons of a California convenience store, Circle K, found themselves in this very situation when they noticed a camera with an “electronic eye pointed straight at the sink and toilet area” of the single stall-men’s bathroom. Store employees insist the camera is not functional, but after gang letters and symbols were carved into the restroom’s walls, management installed the camera as a decoy to discourage vandalism.

Unsurprisingly, the camera prompted complaints from customers who were disturbed by the camera’s presence. The press account quotes a particular man fearing his bathroom activities might wind up on YouTube, and after the release of the now-viral security camera footage of a woman walking into a mall water fountain with security personnel snickering in the background, I’d say his fear may be valid.

The legality of the situation is not clear from the article. The article cites “legal experts” who say the store is “not technically breaking any laws” but fails to mention or explain the laws at issue. The experts also cite the possibility of “legal challenges” from customers who don’t realize that the camera is not recording but fail to state what these challenges actually are.

Our own research suggests that while the camera might not be “on”, there’s still a possibility of a successful civil lawsuit for anyone who used this bathroom.

There have been previous recent reports of criminal liability regarding cameras in public restrooms but those situations involved clearly operable cameras. One such case, also in California, (what is it about California proprietors installing cameras in public bathrooms?) involved a hidden camera placed in the restroom of a bar while the recordings were displayed on a monitor in the backroom. This case is currently under review by the district attorney’s office. Another case, in Texas, involved a camera installed by a gas station employee in a public restroom for kicks where the offender was arrested for illegal videotaping and is currently awaiting trial.

Although a camera installed in a bathroom certainly feels like it should be criminal, California’s Penal Code Section 647(j)(3)(A) requires actual recording or first-hand viewing. The statute criminalizes the actions of anyone who “who uses a concealed camcorder, motion picture camera, or photographic camera of any type, to secretly videotape, film, photograph, or record…another, identifiable person who may be in a state of full or partial undress, for the purpose of viewing …that other person, without the consent or knowledge of that other person, in the interior of a bedroom, bathroom…or the interior of any other area in which that other person has a reasonable expectation of privacy, with the intent to invade the privacy of that other person.”

If the camera in Circle K’s bathroom is really just a decoy, as the employee in the article claims, and was never used to record then criminal charges would be hard to justify.

Since the requirements for a criminal charge are not necessarily fulfilled, patrons who used Circle K’s men’s room have the option to sue civilly for invasion of privacy, which comes with a more lenient standard of proof.

Consider Hernandez v. Hillsides, Inc., a 2009 California Supreme Court case regarding an invasion of privacy claim brought by employees of Hillsides Children Center, a private, non-profit center for abused children, against the facility after the discovery of a hidden camera in their office. The camera was installed in attempt to catch the culprit responsible for viewing Internet porn late at night on the plaintiff-employees’ computers. The facility operators did not suspect the plaintiffs as the porn viewer and were diligent in their efforts to avoid recording these particular employees.

These efforts — turning the camera on after the employees’ shifts ended, limiting access to the camera monitor in a locked storage room, only having the camera in their office for twenty-one days — were important to the case. It convinced the court there was enough evidence for the case to proceed before a jury to consider whether there was an actual invasion of privacy.

Hernandez provides the guiding legal framework for a suit brought in California for invasion of privacy. The plaintiffs must prove that: 1) there was an “intentional intrusion” in a place where there is a “reasonable expectation of privacy”, violating social norms and 2) the intrusion must be “highly offensive” under the circumstances at issue.

Back to Circle K:  We know that there is a reasonable expectation of privacy when using a public restroom and that having a camera mounted on the wall violates social norms. If the camera was found to be operable while patrons used the restroom, this would most certainly constitute “highly offensive” conduct (and under California law, a crime). But was there an “intrusion” if the camera wasn’t working?

A 2010 case in Iowa offers some help on this very issue. There, an employee sued her boss for invasion of privacy after discovering a camera in the office bathroom. When found, the camera was not functional. Its battery was dead and the surveillance system was not set up to receive images from the camera. Focusing on the first element, the “intentional intrusion”, the court stated an intentional intrusion could be found if the camera was merely proved to be “capable of functioning while in the bathroom.” An actual recording was not necessary for the case to proceed to trial, where a jury would decide if there was, in fact, an invasion of privacy.

At Circle K, the requisite intrusion could be found through the mere existence of the camera in the restroom if the camera had the capability of recording customers. If it was possible for store employees to render the camera functional, a legal argument could go forward regarding an invasion of privacy.

As for the store’s excuse for installing the camera, deterring vandalism, we have a better solution: don’t allow patrons to use the bathroom.   Certainly saves on legal fees.

Comments

3 Comments »

3 Responses

  1. D,C, says:

    This is patently ludicrous. There are numerous pinhole-sized devices which can be positioned in a vent, a crack between ceiling joints, a hole drilled thourgh fromthe other side of a wall that has been camouflaged, etc. There are available online manuals which instruct those interested in anonymous monitoring techniques, so this ham-handed use of a faux camera is pathetically unimaginative, as well as being legally unsupportable due to established legal doctrine in tort law, especially as regards the intentional infliction of mental and emotional distress. Even a 2L would have little trouble convincing a jury that the expectation of privacy in a public bathroom meets the ‘reasonable man’ standard. After that, it is but a simple matter to establish the damages, etc.

    A simple call to their legal department and a smidgen of due diligence would have prevented Circle K stores management all of this embarrassment. Ah, Miss Management, however do we put up with your antics?

  2. shakha khan says:

    D,C,
    You write “A simple call to their legal department and a smidgen of due diligence would have prevented Circle K stores management all of this embarrassment.”

    A simple call to the legal department — from who? A smidgen of due diligence — by who?

    And what exactly is “patently ludicrous”?

    Your comment is intriguing, but not entirely clear.

  3. As a patient of the Charleston Treatment Center I have become accustom to many changes in policy over the years. Some good, some bad, some that are very short lived and others that are great for both patients and staff. I have been a patient now for what will be 6 years this coming October and first and foremost I want to thank the Charleston Treatment Center staff for saving my life and enabling me to live the life God intended for me to live. Unfortunately though it has come to my attention today, August 13th that camera’s are now in the bathrooms to aid in the collection of urine specimens. I personally not only find this offensive and intrusive but an infringement upon patients 4th amendment rights. This not only infringes upon patients rights to privacy in a private area, but also reduces the moral of the entire patient populous. I already feel stigmatized enough for taking methadone daily, but I have had great success with treatment and I feel that by adding another process to the foreboding task of urine collection just makes me feel even more of a ‘bad person’. I am used to urine drug screens, especially since I had them frequently in the Army, but never in my life, no matter where I have gone, have I had my genitalia on camera for any purpose public or private. As a Medical Technologist I have performed thousands of observed and random urine drug screens and DOT drug screens and not once was a camera involved or video footage of the patients genitalia involved. This raises many questions. The first has to do with the morality of filming someone when they are urinating and or defecating, which is a private matter that as a society we have learned from childhood to do ‘in private’. Now I do understand that being a patient means that I am subject to ‘observed’ drug screens, but the observer should be in the room with me, not in another room watching a video monitor that is somehow connected to a video camera. This raises even more questions, who is watching this video, could it be recorded, is it secure, is is transmitted by wifi or hard wire and if so is it encrypted? As a rule patients expect a certain amount of privacy when entering a restroom. Can we be assured that the video camera is on only when a urine specimen is being collected? The other question that is raised is the simplest one of all and has to do with the validity of this process to begin with. If it takes a male or female to watch a video to ensure that a person is actually urinating in a cup, what is the difference with them standing in front of the patient as opposed to sitting behind a monitor, where others could see and the video recorded by other devices. It seems that the only benefit this practice would serve would be to save the observer the 30 or so feet that they would have to walk to the restroom and back to their station in the med room, so what good does this serve in the first place? It seems to me to be a waste of resources and gives the deceptive individual a chance to adulterate the urine specimen because human eyes can see much more than a camera and a human can also feel through empathetic emotions, deception by the actions of an individual, such as shaking, panicky behavior or other odd behavior which cannot be captured on video but is completely evident by the presence of a human observer.
    Often times individuals and even groups of people come up with an idea that seem good at the time but in practice is not good at all and is not only counter productive but actually infringe on a patients rights. Patients who have been in treatment for long periods of time, who have attended hundreds of hours of groups, never failed a drug screen, never missed a call back and so on should not be subjected to any further hardship just because of the needs of the few individuals who just don’t get it. When it comes to rules and regulations the needs of the many outweigh the needs of the few and for those few who absolutely try to bamboozle the system they need direct observation with human eyes. If a camera was placed in front of the toilet at a 45 degree angle it would only show the front of the ‘penis’ and the camera for a ‘women’ would not show much of anything as a women could pull her pants down just enough to get a specimen cup between her legs and could crouch back therefor concealing her genitalia completely. This surveillance is therefor by nature and anatomy biased towards male allowing unscrupulous females to adulterate their specimen rather easily. Even males who taped or glued a thin measured amount of tubing to the underside of their penis could adulterate the specimen if this procedure was fully implemented. That is why this kind of collection procedure is not used by any government agency or any other agency that I am aware of even though video-surveillance camera’s have been around in the United States since 1949. They are not used for this purpose due to the fact that it is extremely easy to circumvent the surveillance safe guards and adulterate the specimen, and because video surveillance is susceptible to what is called “video sniffing” , which is the hacking and broadcasting of the video for other purposes. I personally do not want a new porn site called ‘ADDICTS GONE WILD’, where I am on video pulling out my penis and urinating in front of a video camera. The military does not utilize this technique, the Department of Transportation or DOT does not utilize this technique and neither should CTC, in my opinion. I feel that it will only lead to a further reduction in patient volume as patients seek alternative treatment plans and or centers and it could ultimately lead to court cases against CTC for video that was inappropriately recorded, hacked, or watched by unauthorized individuals. Which leads me to another issue. Who is watching who, does a male watch a male, a female watch a female, again, it’s redundant, has no checks and balances and gives the patient a chance to ‘beat the system’ by using apparatuses attached to there bodies to deliver a specimen, which would have been caught had an actual observer been present. I have found two paragraphs from two different methadone forums talking about this very issue. I have nothing to do with the following statement’s nor do I embrace or endorse what is being said, but it’s subject matter is germane to this issue I am writing about. The first states verbatim:
    “WTF: hi ya’ll i’m not sure about everyone else but i am from pennsylvania and at our clinic they have a camera in our bathroom. Now i’m not sure how everyone else feels about this but it pisses me off and makes me sick all at the same time. For one thing at my clinic the only time you are supposed to get a monitored urine analysis (UA) is if you are up for a privalege, but if there is a camera in the bathroom technically everytime you pee it is monitored, even when you are not giving a UA. How do we know if they are recording us use the bathroom or not, just because they say there not, does’t mean they are telling the truth. and where the monitor is set up in our clinic for the nurses to watch you use the BR, everyone that walks to the dosing window can see whom ever is in the bathroom pee.My husband and I did a test one day to see if the nurses payed attention to those of us that had to use the bathroom while giving a UA. Mind you we have been clean now for 2 years. anyways, he walked into the bathroom and instead of standing over the toilet to pee in the bottle he turned around to where the camera could not see him, no sooner he did that and a nurse came running out of the back and started punding on the door kicking it and pulling on the doorknob screaming what are you doing in there i can’t see you, your not on camera, well me i can’t keep my mouth shut so that nurse and i got into an argument about her looking at my husbands private parts, and everyone there was in agreement with me. Anyways now for the last 4 or 5 months my 2nd cousin is a nurse at my clinic, and she told me some stuff about the nurses and what they do when the men go to the bathroom, I was right the nurses sit there and talk about how big each guys thing is and what not, i think it’s an outrage and I know it appals me. Now what if my little girl had to use the bathroom and they were recording it, i don’t want some sick pervet getting his jollies off to my little girl peeing. There has to be some kind of law against this. I’m sorry but i would rather have a female nurse walk in the bathroom with me and a male walk in the bathroom with my husband when taking a UA then to have a video camera watch me when i don’t know wether or not they are recording it. And I don’t appreciate all those female nurses looking at my husbands private, that is for me and me only, believe me i’m not embarassed of what he’s got . i’m actually very proud lol, but it’s just the point that i feel it is sick and goes against our right. i’d like to hear some other peoples in take on this.” I can absolutely understand this woman’s view that the nurses were looking at her husbands genitals, something that she and she alone should be doing. It also talkes about what goes on behind the partician, meaning the indivuals responsible for the viewing of this video is in complete control and there is nothing to stop them from abusing the system, no safe guards in place at all. The second paragraph is from an entirely different forum and reads “Today was quite humid so I went to their toilet before being “dosed” (I really hate that word for some reason), pulled down my pants to my feet, and used some toilet-paper to wipe the sweat from between my legs, balls and arse-cheeks… just generally ‘freshening up’ as I walk long distances each day to get to the clinic and university. Whilst washing my hands I looked up and realised there’s one of those round dark tinted plastic half-spheres with a camera in it pointed directly at me and the toilet?! I had used the toilet before this to urinate many times but had never before noticed I was on film until today. Now I’m a pretty free, open and physically liberal guy, and usually don’t have any qualms about people seeing me naked, BUT there’s something really strange about people video-taping you while you’re intimately cleaning your privates. It’s not even something I would be comfortable with my partner seeing, yet alone some random methadone-clinic workers I barely know. I can’t shake the feeling that my privacy has been severely infringed upon….. I was thinking maybe the reason for it was that they needed to make sure that the urine tests they sometimes conduct aren’t faked or adulterated (maybe because some people are under legal restrictions with probation or something?). Secondly there’s the obvious factor that it could be to stop people from shooting up in the toilet. Even though I think neither of these reasons warrants video-taping people in the toilet, at the very least they could put a sign up saying: “NOTICE: TOILET UNDER VIDEO-SURVEILLANCE” or something. What does everyone else think of this? Is it normal? Am I being too sensitive? It’s a strange situation as the Kobi Clinic is privately owned (as far as I know), not public like some of the others. However, surely filming someone naked without their knowledge – even if it is on private property – is against the law? Either way I am now looking for somewhere else where I can finish the Suboxone program as I don’t think I will ever be comfortable talking to the same people each day whom I’m pretty sure just watched me scrubbing my perineum and associated areas clean….. I even did that thing where you wipe between the cheeks, inspect the paper only to realise there’s a bit of fecal matter and then going through the motions to remove it, checking each time.”
    Although the individual who wrote the complaint was not belletristic , his point is crystal clear. I can absolutely understand the frustration and humiliation that the individual went through. This is a real life example of what happens in a bathroom an we need to be completely candid about this. Video camera’s do not belong in bathrooms, people do and that’s the bottom line. I am asking the Charleston Treatment Center to consider removing said camera’s as soon as possible because of the few examples I have mentioned above and the far crucial reason to CTC, potential lawsuits. There are far more serious implications and ramifications that could occur if someone wished to pursue a lawsuit over the handling, viewing and misuse of video-surveillance, not to mention the vulnerability of hackers to intercept video transmissions. I would like to also site a few court cases in which the 4th amendment was acknowledged as being infringed upon when video-surveillance was used, even knowingly.
    The U.S. Supreme Court in Katz vs. United States 389 U.S. 347 (1967), defined modern “search and seizure” law under the Fourth Amendment. The Court declared that “What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection, but what he seeks to preserve as private, even in an area accessible to the public, may be Constitutionally protected. Generally, a person walking along a public sidewalk or standing in a public park cannot reasonably expect that his activity will be immune from the public eye or from observation by the police. As recognized by the Supreme Court in United States vs. Knotts 368 U.S. 276, 281-82 (1983):
    A person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another. When [an individual] traveled over the public streets he voluntarily conveyed to anyone who wanted to look the fact that he was traveling over particular roads in a particular direction, and the fact of his final destination when he exited from public roads onto private property.
    Following this reasoning courts, for the most part, have allowed police to videotape individuals on public roads. Transactions in plain view in a public forum generally do not raise Fourth Amendment issues. This is known as the plain view rule and open field doctrine. If a person does something illegal in plain view (e.g. in front of a video camera), an officer would not need a warrant to search that person to find the incriminating evidence. Court decisions interpreting and applying the Fourth Amendment do not classify this situation as a person, house, paper, or effects that are protected against unreasonable search and seizures. In a recent unpublished opinion, United States vs. Sherman, 990 F. 2d 1265 (9th Cir. 1993), the Court of Appeals for the Ninth Circuit held that individuals videotaped in public view have no reasonable expectations of privacy, and could not challenge the government’s use of videotape at trial as violating the Fourth Amendment. When this test is applied to video surveillance of public streets, the prevailing legal view is that it does not violate the Fourth Amendment. In contrast, surveillance by the government of activities occurring within an individual’s house may violate the Fourth Amendment. The Supreme Court has developed a test to determine if such surveillance violates the Constitution:
    1. Does the surveillance occur from publicly navigable airspace?
    2. Is the surveillance conducted in a physically non-intrusive manner?
    Before answering these questions to see if they are applicable to the Charleston Treatment Center we must first define intrusive. Intrusive is defined as making an unwelcome manifestation with disruptive or adverse effect (of a person), or disturbing another by one’s uninvited or unwelcome presence. The first sentence deals with surveillance occurring from publicly navigable airspace? The answer applicable to CTC would be NO, the airspace in question is a private restroom used by patients for the sole purposes of collecting urine drug screens and therefor would be considered private and not public and therefor would be considered intrusive and by definition and implication an infringement of the 4th amendment. The Second standard states” is the surveillance conducted in a physically non intrusive manner”. Physically the camera is intrusive, being that it is placed in a private, not public area and is quite unwelcome by all patients. The camera is intrusive in the manner that it is placed in an area that is normally considered to everyone to be private and intrusive in the manner that is is a direct unwelcome manifestation of a new observation technique and is very disturbing and unwelcome in a private area such as a urine collection area. One would not consider a waiting area to be private or the parking lot private, but a bathroom where an individual is unclothed or is exposing his or her genitalia and performing other bodily functions such as urinating and defecating, cleaning ones body, is most definitely considered private to the individual, and private to the entity CTC. Since that particular restroom is used solely for patients to collect a urine specimen it is considered private, and therefor would constitute an infringement of the 4th amendment due to it’s private implication and private function.
    The Fourth Amendment of the United States Constitution protects the “right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures.” Government activities that qualify as a “search” must be accompanied by a properly issued warrant based on probable cause. If government video surveillance is not a “search” under the Fourth Amendment, then no warrant is required.
    The United States Supreme Court has defined “search” broadly, such that even non-invasive surveillance may qualify. A “search” is not just a “physical intrusion into [a] given enclosure,” but rather whenever a reasonable expectation of privacy is infringed. Whether an individual can claim a reasonable expectation of privacy rests on two questions: (1) has the individual shown that “he seeks to preserve [something] as private?” and (2) is the individual’s subjective expectation of privacy “one that society is prepared to recognize as ‘reasonable’?”
    At the age of 18 I swore an oath to protect and defend the Constitution of the United States against all enemies foreign and domestic and I am duty bound by my oath until death. I take our precious Constitutional rights very seriously as should every citizen. Any violation or infringement of the Constitution should be addressed by the people, as the Constitution was drafted by and for the people and we are all duty bound to protect it. Thank you for reading and considering my views on the validity, morality and legality of video-surveillance urine drug screen procedures and once again thank you for your excellent service and for saving my life.

    Most Respectfully,

    Michael Dale Sipes, Jr. MLT

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