LEGAL ISSUES IN VIDEO SURVEILLANCE: What to Watch Out For

1. LEGAL ISSUES IN VIDEO SURVEILLANCE: What to Watch Out For Alan F. Wohlstetter, Esq., Chair Infrastructure Practice Group Fox Rothschild LLP Philadelphia, PA www.SecuredCities.com

2. LEGAL ISSUES IN VIDEO SURVEILLANCE: What to Watch Out For (cont.) An overnight success (cont.) • Create a financial model that works through public-private partnership (P3) agreements • Adopt written policies that address an individual’s right to privacy, audio surveillance, retainage and disclosure of surveillance footage and negligent security claims www.SecuredCities.com

3. LEGAL ISSUES IN VIDEO SURVEILLANCE: What to Watch Out For (cont.) • The goals of your community’s system may be quite different from Wilkes-Barre’s, and the way you resolve these issues will therefore be unique • It is critical, however, to recognize the legal factors to balance and how might they be addressed www.SecuredCities.com

4. LEGAL ISSUES IN VIDEO SURVEILLANCE: What to Watch Out For (cont.) Articulating the Public Policies to Be Served • Mayor Tom Leighton of Wilkes-Barre, Pennsylvania wanted to create a wireless city, and then build a video surveillance network to take advantage of the wireless infrastructure www.SecuredCities.com

5. LEGAL ISSUES IN VIDEO SURVEILLANCE: What to Watch Out For (cont.) • Mayor John Street of Philadelphia wanted to create a wireless city, and then use the City revenue from the venture to address digital divide issues • As of the fall of 2010, Wilkes-Barre is a wireless city, with 250 video surveillance cameras serving as a force multiplier for local police • Philadelphia has a half-built wireless network that has changed hands twice for pennies on the dollar, and has no functioning video surveillance cameras to speak of www.SecuredCities.com

6. LEGAL ISSUES IN VIDEO SURVEILLANCE: What to Watch Out For (cont.) Articulating the Public Policies to Be Served (cont.) Mayor Leighton’s public policy goals • Create a state-of the art, 24-7 video surveillance network that boosts public safety and economic development • Allows a more strategic and safer deployment of Police • Boosts Police responsiveness and conviction rates • When an old camera is decommissioned, it doesn’t need a pension, and it doesn’t need health care www.SecuredCities.com

7. LEGAL ISSUES IN VIDEO SURVEILLANCE: What to Watch Out For (cont.) Creating a Legal Structure for the Network • Establishing a contracting entity distinct from the city may insulate it from liability, as well as avoid the need to follow traditional procurement procedures which are poorly suited for P3s • Governmental entity such as the City itself • State non-profit corporation with City tort immunity • 501(c)(3) corporation which can increase possibility for private donations • 63-20 corporation www.SecuredCities.com

8. LEGAL ISSUES IN VIDEO SURVEILLANCE: What to Watch Out For (cont.) A Transparent Procurement Process that Involves the Public • Request for Information and Comment alerts industry participants to the opportunity • Request for Qualifications ensures that there are private sector players with requisite financial strength, experience and interest to bid www.SecuredCities.com

9. LEGAL ISSUES IN VIDEO SURVEILLANCE: What to Watch Out For (cont.) • Request for Proposals containing concession or network agreement detailing specific outcomes required • Bidders conference allowing us to define expectations and gather ideas from bidders • Solicit public input on location of surveillance cameras www.SecuredCities.com

10. LEGAL ISSUES IN VIDEO SURVEILLANCE: What to Watch Out For (cont.) Creating a Financial Model that Works • A successful public-private partnership (or P3) places the risk upon the party best able to mitigate such risk • For a municipal video surveillance network, the installation, operational, maintenance and obsolescence risks are best borne by the private party with information technology experience • It was the job of the camera vendor and 4.9 network provider to provide us a system that worked with the connectivity necessary for high-level functionality Reward Risk P3s www.SecuredCities.com

11. LEGAL ISSUES IN VIDEO SURVEILLANCE: What to Watch Out For (cont.) Creating a Financial Model that Works (cont.) • Having the enterprise off of the City’s balance sheet ensures that its credit is not at risk in the venture • A revenue opportunity to contract with major institutions interested in having cameras located in designated areas • The School District and the Parking Authority have entered into five-year arrangements providing the revenue stream necessary to pay for monitoring, as well as administrative costs • Contracted with a private company to monitor the surveillance cameras at a cost two-thirds less than the cost of police officers serving the same function www.SecuredCities.com

12. LEGAL ISSUES IN VIDEO SURVEILLANCE: What to Watch Out For (cont.) Establishing Written Video Surveillance Policies Addressing Citizens Right to Privacy • Surveillance of public areas is not a violation of an individual’s right to privacy under the Fourth Amendment because individuals do not have a reasonable expectation of privacy to things or actions in public view • Courts have held that merely being filmed while in a public place, even with a zoom lens, does not by itself constitute an invasion of privacy. www.SecuredCities.com

13. LEGAL ISSUES IN VIDEO SURVEILLANCE: What to Watch Out For (cont.) • Pennsylvania’s Political Subdivision Tort Claims Act (“PSTCA”) states that “no local agency shall be liable for any damages on account of any injury to a person or property” • The PSTCA does not, however, provide civil immunity “for acts or conduct which constitutes a crime, actual fraud, actual malice or willful misconduct.” • Video surveillance of homes is more likely to be considered a search under the Fourth Amendment, especially when enhancing technologies are used www.SecuredCities.com

14. LEGAL ISSUES IN VIDEO SURVEILLANCE: What to Watch Out For (cont.) Establishing Written Video Surveillance Policies Addressing Recording of Sound • Audio surveillance is heavily regulated by both state (Pennsylvania Wiretapping and Electronic Surveillance Control Act, 18 Pa. C.S. § 5701 etseq.) and federal law (Federal Electronic Communications Privacy Act of 1986, 18 U.S.C. § 2510 etseq.). These provisions do not apply to silent video surveillance. • The surveillance system should not record sound www.SecuredCities.com

15. LEGAL ISSUES IN VIDEO SURVEILLANCE: What to Watch Out For (cont.) Establishing Written Video Surveillance Policies Addressing Retainage and Disclosure of Surveillance Footage • There is no statutorily mandated length of time that surveillance footage must be retained • This is often a cost/benefit determination for the City www.SecuredCities.com

16. LEGAL ISSUES IN VIDEO SURVEILLANCE: What to Watch Out For (cont.) • Recorded footage need only be kept for a sufficient time for law enforcement purposes, but access must be made to criminal defendants and parties involved in valid lawsuits against the City (Seven days in Wilkes-Barre) • Video records are disclosable under Pennsylvania’s Right-To-Know Law • The public release of video surveillance records would reveal the scope and capability of surveillance cameras, thus alerting individuals to blind spots within the security system. www.SecuredCities.com

17. LEGAL ISSUES IN VIDEO SURVEILLANCE: What to Watch Out For (cont.) Establishing Written Video Surveillance Policies Addressing Negligent Security • Arises out of the principle of premises liability • Video surveillance should be part of a broader security program that is reasonable for the needs of the City and its residents CAMERAS NOT CONTINUALLY MONITORED www.SecuredCities.com

18. LEGAL ISSUES IN VIDEO SURVEILLANCE: What to Watch Out For (cont.) Establishing Written Video Surveillance Policies Addressing Negligent Security (cont.) • Cameras must contain a disclaimer that can help avoid a claim of negligent security for a camera that is not always monitored • The disclaimer on the City of Wilkes-Barre’s cameras: ”WARNING: Cameras are recorded, but are not continually monitored” • Cornell University: “This area is subject to surveillance for security purposes and may or may not be monitored.” www.SecuredCities.com

19. LEGAL ISSUES IN VIDEO SURVEILLANCE: What to Watch Out For (cont.) The City of Wilkes-Barre created a video surveillance network that works well for that community • Articulate the public policies to be served: Creating a state-of the art, 24-7 video surveillance network that boosts public safety and economic development • Create a legal structure that can involve the community and limit the City’s liability: Hawkeye Security Solutions, a state non-profit corporation with city tort immunity with a Board consisting of community leaders www.SecuredCities.com

20. LEGAL ISSUES IN VIDEO SURVEILLANCE: What to Watch Out For (cont.) • Utilize a procurement process that is transparent and involves the public: RFQ; RFP; bidders conference, allowing us to define expectations and gather ideas from bidders; solicit suggestions from the public on cameras locations • Create a financial model that works through P3 agreements: service agreement with camera vendor; five-year agreements with the City’s major institutions; camera monitoring agreement with a private company www.SecuredCities.com

21. LEGAL ISSUES IN VIDEO SURVEILLANCE: What to Watch Out For (cont.) Creating a video surveillance network that works for your community (cont.) • Adopt written policies that address an individual’s right to privacy, audio surveillance, retainage and disclosure of surveillance footage and negligent security claims: no cameras focused on homes; no audio recording; destroy footage after seven days; disclaimer on cameras • Successfully used its video surveillance network to enhance public safety and economic development through the addition of 250 video surveillance cameras run by a non-profit corporation and financed with the support of the local business community • The solution for your community will be crafted by the leaders here, with an eye toward the same legal issues Wilkes-Barre was forced to address www.SecuredCities.com

22. LEGAL ISSUES IN VIDEO SURVEILLANCE: What to Watch Out For (cont.) • Alan F. Wohlstetter, Esq. • Chair, Infrastructure Practice Group • Fox Rothschild, LLP, a 500-attorney law firm • Former Counsel to Wireless Philadelphia, Philadelphia’s wireless network • Former Counsel to Wirefree Wilkes-Barre, Wilkes-Barre’s wireless network • Counsel to Hawkeye Security Solutions, Wilkes-Barre’s video surveillance network • Phone (215) 299-2834 • awohlstetter@foxrothschild.com www.SecuredCities.com