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Legal Implications of Video Surveillance on Transit Systems
March 2018

TRANSIT COOPERATIVE RESEARCH PROGRAM

Sponsored by the Federal Transit Administration

Responsible Senior Program Officer: Gwen Chisholm Smith

Legal Research Digest 52

LEGAL IMPLICATIONS OF VIDEO SURVEILLANCE ON TRANSIT SYSTEMS
This report was prepared under TCRP Project J-05, “Legal Aspects of Transit and Intermodal Transportation
Programs,” for which the Transportation Research Board is the agency coordinating the research. The report
was prepared under Topic 17-02 by Larry W. Thomas, The Thomas Law Firm, Washington, DC.

The Problem and Its Solution (both union and non-union), safety issues associated
with such use, public access to such video, and retention
The nation’s 6,000 plus transit agencies need to have policies regarding video, among others.
access to a program that can provide authoritatively This digest addresses:
researched, specific, limited-scope studies of legal issues
and problems having national significance and applica- • The federal and state laws that protect the privacy
tion to their business. Some transit programs involve of those under surveillance and the current practices
legal problems and issues that are not shared with employed to comply with those laws;
other modes, as for example, compliance with transit- • Federal and state laws that provide for or deny
equipment and operations guidelines, FTA financing public access to surveillance records and the current
initiatives, private-sector programs, and labor or environ- practices employed to comply with public access
mental standards relating to transit operations. Also, much requirements that protect privacy rights;
of the information that is needed by transit attorneys to
address legal concerns is scattered and fragmented. Con- • Federal and representative state laws that affect
sequently, it would be helpful to the transit lawyer to have audio portions of surveillance records and the current
well-resourced and well-documented reports on specific practices employed to comply with those laws;
legal topics available to the transit legal community. • Federal and state laws that provide for the retention
The Legal Research Digests (LRDs) are developed to of video and the current practices used to comply
assist transit attorneys in dealing with the myriad of initia- with these regulations;
tives and problems associated with transit start-up and
operations, as well as with day-to-day legal work. The • Employment-related implications for using inward-
LRDs address such issues as eminent domain, civil rights, facing cameras that record the activities of operators
constitutional rights, contracting, environmental con- and the current practices used by employers;
cerns, labor, procurement, risk management, security, tort • Current policies used to determine when employees
liability, and zoning. The transit legal research, when con- must activate or are forbidden from deactivating sur-
ducted through the TRB’s legal studies process, either veillance equipment and the legal issues associated
collects primary data that generally are not available else- with these policies; and
where or performs analysis of existing literature.
• Record-retention practices and public access require-
ments associated with tort litigation.
Foreword
Transit systems throughout the country have installed This digest will be useful to federal and state tran-
video surveillance systems in their buses, trains, and sit and highway agency personnel. It also informs
stations. The widespread use of such video surveillance other professionals and students in the legal and
systems has generated numerous legal issues, such as a engineering disciplines.
system’s ability to utilize video to discipline employees

Copyright National Academy of Sciences. All rights reserved.

Legal Implications of Video Surveillance on Transit Systems

CONTENTS

I. Introduction, 3 IX. Remedies at Common Law for Invasion of Privacy, 35

II. Transit Agencies’ Use of Video Surveillance, 6 A. States That Recognize an Invasion of Privacy at Common Law, 35
A. Purposes of Video Surveillance, 6 B. Public Disclosure of Private Facts, 36
B. Transit Agencies’ Policies Applicable to Video Surveillance, 6 C. Claims for Misappropriation or False Light, 36
C. Notice of Video Surveillance, 6 D. Intrusion Upon Seclusion, 36

III. Privacy Risks Associated With Transit Agencies’ Use of X. Use of Video Surveillance in Tort Litigation and Accident and
Video Surveillance, 7 Criminal Investigations, 37
A. Standards and Guidelines for Video Surveillance, 7 A. Use of Video Surveillance in Tort Litigation, 37
B. Long-Duration or Permanent Video Surveillance, 8 B. Use of Video Surveillance in Accident and Criminal Investigations, 38
C. Recording and Archiving of Video Surveillance Data, 9 C. Effect of 23 U.S.C. § 409 on the Admissibility of Video Surveillance, 38
D. Use of Technology to Identify and Track an Individual, 10 XI. Disclosure of Video Surveillance Records Under the Federal or
a State Freedom of Information Act or Equivalent Law, 39
IV. Whether There Is a Right to Privacy Under the United States
Constitution That Applies to the Use of Video Surveillance, 11 A. Federal and State FOIAs or Other Public Records Disclosure Laws and
Video Surveillance Data, 39
A. Evolution of Privacy Rights, 11
B. Transit Agency Policies and Practices on Release to a Requestor of
B. The Fourth Amendment and Video Surveillance Data, 41
a Constitutional Right to Privacy, 14
C. Agency Waiver of Privacy Exemption, 41
C. Whether a Person in Public Retains a Right to Anonymity, 17
XII. Conclusion, 42
V. The Right to Privacy Under State Constitutions, 18
Appendices, 44
A. State Constitutions Recognizing a Right to Privacy, 18
B. States Recognizing an Implied Cause of Action for a Violation of a
State Constitutional Provision, 19
VI. Whether There Are Federal and State Statutes That Apply to
Video Surveillance, 20
A. Evolution of Federal Statutory Privacy Rights , 20
B. Privacy Act of 1974, 21
C. State Statutes Applicable to Video Surveillance, 22
D. Whether State Data-Collection Statutes Apply to Video
Surveillance Data, 23
VII. Regulation of Any Audio Portion of Video Surveillance, 25
A. Federal Wiretap Act, 25
B. Stored Communications Act, 26
C. Whether One Party or All Parties to a Communication Must Consent
to Audio Surveillance, 27
VIII. Video Surveillance and the Right to Privacy in
the Workplace, 29
A. Whether a Public Employee Has Fourth Amendment Rights
in the Workplace, 29
B. Video Surveillance and Violation of Collective Bargaining
Agreements, 30
C. State Statutes on Video Surveillance in the Workplace, 31
D. Whether Transit Agencies Have Immunity for Searches in
the Workplace, 33
E. Video Surveillance of Transit Operators, 33
F. Use of Video Surveillance to Deter or Prevent Assaults on
Transit Workers, 34
G. Transit Agencies’ Policies on Employees’ Activation or Deactivation
of Surveillance Equipment, 34

Copyright National Academy of Sciences. All rights reserved.

Legal Implications of Video Surveillance on Transit Systems

LEGAL IMPLICATIONS OF VIDEO SURVEILLANCE ON TRANSIT SYSTEMS

By Larry W. Thomas, The Thomas Law Firm, Washington, DC

I. INTRODUCTION most closely observed in the world.”8 As of 2011, the

city had spent over $60 million on its “integrated
Video surveillance is widely used in public trans- camera network” and installed approximately 10,000
portation.1 In fact, since the 1990s most transit agen- surveillance cameras on trains and in buses.9 The
cies that have provided passenger rail service have Chicago Transit Authority already had over 3,000
used video surveillance, “some as early as the 1970s.”2 cameras, with approximately twenty at each station.10
Initially, transit agencies used video surveillance to From 2014 to 2015, according to Chicago Mayor
manage or to control overcrowding, nonpayment of Rahm Emmanuel, the increase in surveillance in
fares, fires, accidents, and injuries.3 For example, the Chicago resulted in a 32% decrease in crime on buses
Port Authority Transit Corporation in New Jersey and trains and a 72% reduction in fare evasion.11 For
used video surveillance primarily to assist patrons 2015, there was a reduction in reported “incidents” to
who were having difficulty with automatic fare collec- a level of seven incidents for every 10 million rides.12
tion and secondarily to deter and apprehend fare- Seventy-two transit agencies responded to a
evaders.4 As discussed in part II of this digest, transit survey conducted for this digest. The transit agen-
agencies now use video surveillance to deter crime, to cies’ responses are discussed throughout the digest
defend against fraudulent claims, to investigate acci- and are summarized in Appendix C. All respondents
dents, and of course, to defend against terrorism.5 to the survey reported conducting video surveil-
Indeed, the value of video surveillance has increased lance. Although the San Francisco Bay Area Rapid
markedly because of the threat of terrorism.6 Video Transit District began using video surveillance in
cameras may be located in stations and on boarding 1972,13 many transit agencies began using video
platforms, in railcars and on buses, in railyards and surveillance in the 1980s.14 However, the number
parking areas, and in other transit areas.7 of agencies having video surveillance systems
In the United States, Chicago has one of the increased significantly in the 1990s and continued
nation’s most extensive and advanced surveillance to increase thereafter.15
networks, making Chicago residents “some of the 8
Guidelines for Public Video Surveillance, supra note 6,
1
Video Surveillance in Public Transportation, http:// at 6 (footnote omitted) (internal quotation marks omitted).
www.masstransitmag.com/article/12171666/video- 9
ACLU of Illinois, Chicago’s Video Surveillance Cam-
surveillance-in-public-transportation (last accessed Aug. eras: A Persuasive and Unregulated Threat to Our Privacy
22, 2017), hereinafter cited as “Video Surveillance in (2011), hereinafter referred to “ACLU Report,” https://www.
Public Transportation.” aclu-il.org/sites/default/files/field_documents/video_
2
Dorothy M. Schulz & Susan Gilbert, Video Surveil- camera_surveillance_in_chicago.pdf.
lance Uses by Rail Transit Agencies, (Transit Cooperative 10
Id. at 10.
Research Program, Synthesis 90, Transportation Research 11
Press Release, Mayor’s Press Office, City of Chicago,
Board, 2011), p. 57, [hereinafter TCRP Synthesis 90], http:// CTA Announce Crimes on CTA Decreased 25 Percent on
onlinepubs.trb.org/onlinepubs/tcrp/tcrp_syn_90.pdf (log in) 2015 (Jan. 27, 2016), http://www.cityofchicago.org/city/en/
(last accessed Aug. 22, 2017). depts/mayor/press_room/press_releases/2016/january/
3
Id. at 10. Crimes-CTA-Decreased.html (last accessed Aug. 22, 2017).
4
Id. at 11 (citing L. Siegel & M. Molof, Policing Urban 12
Id.
Mass Transit Systems (A National Evaluation Program, 13
See Appendix C, transit agencies’ response to question 2.
Phase 1 Report by the MITRE Corp), LEAA, Department of 14
Id.
Justice, Washington, D.C. (1979)). 15
See id. See also, Karen Landers, A Practical Approach
5
Id. at 10, 12–13, and 38. to Video Surveillance Technology—San Diego Metropolitan
6
The Constitution Project, Guidelines for Public Video Transit System, DRI.org Civil Rights and Governmental
Surveillance: A Guide to Protecting Communities and Pre- Technology Tort Liability CLE Program, at 243, (2015),
serving Civil Liberties, (2006) at 3, hereinafter referred to hereinafter referred to as “Landers,” (stating that since
as “Guidelines for Public Video Surveillance,” https://www. approximately 2010, the San Diego Metropolitan Transit
law.berkeley.edu/files/Video_surveillance_guidelines.pdf System has upgraded and expanded its video surveillance
(last accessed Aug. 22, 2017). network and that by 2015, the network included cameras
7
TCRP Synthesis 90, supra note 2, at 24–25. on approximately 587 buses and 107 light rail vehicles and
in 34 of 55 stations).

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Legal Implications of Video Surveillance on Transit Systems

The transit agencies’ responses identified the Part IV addresses whether there are privacy
areas, facilities, and equipment that are subject to rights under the United States Constitution that
video, as well as audio, surveillance.16 For example, apply to transit agency use of video surveillance.
the Department of Transportation and Public Works This digest discusses the expansion of privacy
(DTPW) in Miami identified the rights after the Supreme Court’s decision in Gris-
[p]assenger platform/waiting areas at Metromover and wold v. Connecticut.21 Eventually, however, the
Metrorail platforms, entry and exit points of Metromover Supreme Court and other courts began to narrow
and Metrorail stations, select passenger parking facilities, privacy rights. There are judicial precedents hold-
critical operational areas of the DTPW system, currency
ing that warrantless searches are permissible
collection and control areas, operations control areas for all
system modes, inventory storage areas, bus entry areas at under the Fourth Amendment when an individual
maintenance facilities, and maintenance areas/yards, inside has no reasonable expectation of privacy or has a
select buses, rail cars, and automated guideway vehicles, and substantially reduced expectation of privacy, such
select common areas of office spaces or maintenance areas.17 as when traveling on highways or public transit.
Even if a person has no reasonable expectation of
The transit agencies’ responses may be compared
privacy in a public place, there is an argument that
to another survey conducted of seventy-four transit
an individual still retains a reasonable expectation
providers in thirty countries that found that almost
of anonymity.
all providers use video surveillance.18 Transit agen-
Part V addresses the issue of whether public
cies reported having video surveillance cameras in
video surveillance violates a right to privacy under
stations, on rolling stock, at depots, in rail yards, and
state constitutions that protect an individual’s right
in other areas.19 Video surveillance reportedly
to privacy or under a state supreme court’s decision
improves passengers’ perception of security, increases
recognizing a right to privacy. Some states also
actual security, and results in fewer crimes, acci-
recognize an implied cause of action for a violation of
dents, injuries, and medical emergencies.20
a state constitutional or judicially recognized right
Part II of the digest discusses transit agencies’
to privacy. Even in some states that provide for a
reasons for installing a video surveillance system,
constitutional right to privacy, it may be necessary
as well as the policies that govern the audio and
to balance a privacy right against a state’s compel-
video surveillance.
ling interest in collecting or disclosing public video
Part III examines the privacy risks that may
surveillance data.22
arise when transit agencies conduct public video
In brief, however, “[m]eaningful legal strictures
surveillance. Even though the use of public video
on government use of public surveillance cameras
surveillance appears to be constitutional under
in…the United States are non-existent.”23 There
present law, a transit agency, nevertheless, depend-
presently is no general constitutional right to
ing on the circumstances, could be sued for allegedly
privacy that is implicated by transit agencies’ use of
violating a person’s reasonable expectation of
video surveillance. Except to the extent discussed in
privacy, violating a statute regulating the use of
parts IV and VIII, the Supreme Court and other
video surveillance, or violating a state common law
courts have not addressed transit agencies’ use of
right to privacy. This digest, therefore, discusses
video surveillance in public areas or spaces.24 There
core principles that transit agencies may consider
are judicial precedents that provide some guidance
that strengthen the agencies’ defenses to potential
claims. The risk to privacy varies according to 21
381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965).
whether video surveillance is conducted only in real- 22
Images collected by video surveillance are also referred
time, is of long duration or permanent, records and to as data. See James A. Snyder & Angela Morelock, Elec-
archives video data, or permits the identification tronic Data Discovery: Litigation Gold Mine or Nightmare,
58 J. Mo. B. 18, 19 (2002); Lieke Jetter & Stephen Sharon,
and tracking of an individual.
Roundtable: Beyond IRBS [Institutional Review Boards];
16
See Appendix C, transit agencies’ responses to Designing Ethical Review Processes for Big Data: Selected
question 3. Issues Concerning the Ethical Use of Big Data Health Ana-
lytics,” 72 Wash & Lee L. Rev. 394 (2016).
17
See id. 23
Christopher Slobogin, Symposium: Public Privacy:
18
Video Surveillance in Public Transportation, supra Camera Surveillance of Public Places and the Right to
note 1. Approximately two thirds of the agencies respond- Anonymity, 72 Miss. L. J. 213, 234 (2002), hereinafter
ing stated that they use network internet protocol (IP) cam- referred to as “Slobogin.”
eras; that about half “have a hybrid surveillance system,
consisting of a mix of analogue and network/IP cameras;”
24
Olivia J. Greer, Note: No Cause of Action: Video
and about one quarter rely on analogue cameras. Id. Surveillance in New York City, 18 Mich. Telecomm. Tech.
L. Rev. 589, 599 (2012) (footnote omitted), hereinafter
19
Id. Video may be recorded, viewed in real time, or referred to as “Greer.”
both. Id.
20
Id.

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Legal Implications of Video Surveillance on Transit Systems

on the limits of video surveillance,25 but apparently data. Appendix D is a modified compilation of federal
no court has held that the use of video surveillance and state laws on audio and video surveillance.
by law enforcement or other agencies to monitor Part VIII discusses video surveillance in the
activity on public property is an unreasonable workplace, including state statutes that regulate or
search or otherwise violates the Fourth Amendment prohibit surveillance in some areas, such as a rest-
or a right to privacy.26 room, locker room, or other areas where an employee
Part VI discusses whether there are federal and has a reasonable expectation of privacy. State stat-
state statutes that apply to video surveillance, and utes may require that employers give notice to
more specifically, to transit agencies’ use of video employees of the presence of video surveillance.
surveillance. The Privacy Act of 197427 applies to Although in some states video surveillance of tran-
federal agencies’ collection of information on indi- sit vehicle operators may violate state law, the
viduals and regulates the agencies’ release of data, Federal Transit Administration (FTA) has received
particularly of personally identifiable information at least one report recommending that audio and
(PII). However, no cases were located for this digest video surveillance be installed on buses to deter
involving a claim under the Privacy Act based on an assaults on transit operators.32 Under federal law as
agency’s use of public video surveillance. As discussed well as the law in some states, when employees
in this digest, there are some state statutes that belong to a union, an employer’s use of video surveil-
regulate video surveillance of the public or in the lance is a subject of mandatory bargaining.
workplace. In sum, however, although there are some Part IX analyzes whether members of the public
statutes of limited scope, there is no comprehensive or transit employees have rights of privacy under
federal or state legislation regulating the use of video state common law. One claim that seems possible,
surveillance.28 One commentator has surmised that depending on the circumstances, is for intrusion
“[s]tatutes and regulations generally lag behind upon seclusion, a privacy tort that does not require
technological development,” but “[c]onstitutional law a showing that data were disclosed to the public via
typically develops at an even more glacial pace.”29 the media. The intrusion upon seclusion claim is for
Part VII analyzes whether video surveillance is an individual’s psychological distress caused by the
legal when it includes audio surveillance. Thus, the intrusion itself.
digest discusses the federal Wiretap Act30 and the Part X discusses the use of video surveillance in
Stored Communications Act (SCA).31 Part VII also tort litigation involving claims brought by or against
addresses state laws that regulate the interception transit agencies and the use of video surveillance in
of electronic and oral communications and of stored accident and criminal investigations.
Part XI shows that, in general, video surveillance
25
Id. at 607 n.135 (citing Katz v. United States, 389 U.S.
347, 351 (1967) (holding that the Fourth Amendment
data are subject to the federal or a state’s Freedom of
protects individuals who have an expectation of privacy Information Act (FOIA)33 or other state public records
recognized as reasonable by society); Dow Chem. Co. v. disclosure law. However, there are several possible
United States, 476 U.S. 227, 238, 106 S. Ct. 1819, 1827, 90 exceptions that may preclude a disclosure of surveil-
L. Ed. 2d 226, 237–38 (1985) (suggesting that zooming lance data, such as statutory exemptions for personal
with a video camera could require a warrant); United
States v. Knotts, 460 U.S. 276, 283–84, 103 S. Ct. 1081,
data, data relating to a pending law enforcement
1086, 75 L. Ed. 2d 55, 63–64 (1983) (finding that a radio investigation, or data on public infrastructure.
transmitter attached to the defendant’s property that Appendix A to this digest is a list of transit agen-
indicated the defendant’s location to law enforcement offi- cies responding to the survey, Appendix B is a copy of
cers did not constitute an unlawful search within the the survey conducted of transit agencies, Appendix C
meaning of the Fourth Amendment but suggesting that
systems that make possible “twenty-four hour surveil-
is a summary of the transit agencies’ responses to
lance of any citizen” and “dragnet-type law enforcement the survey, Appendix D is a compendium of state
practices” potentially raise Fourth Amendment concerns)). laws on video and/or audio surveillance, and Appen-
26
Guidelines for Public Video Surveillance, supra note dix E provides a copy of policies, practices, and other
6, at 11. documents that transit agencies provided in response
27
Pub. L. No. 93-579, 88 Stat. 1896. to the survey on their use of video surveillance.
28
Greer, supra note 24, at 599.
29
Guidelines for Public Video Surveillance, supra note
32
See Part VII. F.
6, at 10.
33
Pub. Law No. 89-487, 80 Stat. 250 (1967) (codified at 1
30
18 U.S.C. §§ 2510–2522 (2017). U.S.C. § 552 (2017)).
31
Pub. L. No. 99-508, 100 Stat. 1848, (1986), (codified at
18 U.S.C. 121 §§ 2701–2712 (2017)).

Copyright National Academy of Sciences. All rights reserved.

Legal Implications of Video Surveillance on Transit Systems

II. TRANSIT AGENCIES’ USE OF VIDEO transit agencies (93.06%) employ video surveillance to
SURVEILLANCE deter or prevent vandalism or other property damage.41

A. Purposes of Video Surveillance 4. To Defend Against Terrorism

Transit agencies responding to the survey identi- Fifty-four transit agencies (75%) use video
fied the purposes that their video surveillance surveillance to defend against terrorism, whereas
systems are intended to serve. thirteen agencies (18.06%) reported that defending
against terrorism is not one of the reasons for their
1. To Assist Transit Customers, to Deter and/or video surveillance system.42
Apprehend Fare-Evaders, and to Deter Other Crimes
5. Other Purposes of Video Surveillance
Fifty-one transit agencies (70.83%) reported that
one of the purposes for having video surveillance is to As summarized in Appendix C, some transit agen-
assist customers.34 Fifty transit agencies (69.44%) said cies reported other uses of video surveillance. For
that they use video surveillance to apprehend fare- example, the Massachusetts Bay Transportation
evaders.35 Sixty-seven agencies (93.06%) use video Authority uses video surveillance of single-person train
surveillance to deter crimes other than fare evasion.36 operation.43 Some transit agencies’ websites also iden-
tify their reasons for conducting video surveillance.44
2. To Investigate Accidents or Alleged Injuries and
to Defend Against Tort , Claims B. Transit Agencies’ Policies Applicable to
Video Surveillance
Sixty-nine transit agencies (95.83%) use video
surveillance to investigate accidents. No transit Forty transit agencies (55.56%) have a policy that
agency said that it did not.37 Sixty-nine transit agen- applies to the use of video surveillance; however,
cies (95.83%) use video surveillance to investigate twenty-nine agencies (40.28%) said that they do not
alleged injuries.38 Sixty-five transit agencies (90.28%) have a policy.45 Appendix C summarizes some of the
use video surveillance to defend against tort claims.39 transit agencies’ policies on the use of video surveil-
lance. Appendix E includes a copy of the policies that
3. To Defend Against Fraudulent Claims and to transit agencies provided.
Deter or Prevent Vandalism and Other Property
Damage or Theft C. Notice of Video Surveillance
Sixty-nine transit agencies (95.83%) use video Fifty-nine transit agencies (81.94%) give notice
surveillance to defend against fraudulent crimes; no to the public of the presence of video surveillance
transit agency said that it did not.40 Sixty-seven in any of the agency’s facilities and/or on any of
its buses or trains.46 For example, the Ann Arbor
34
See Appendix C, transit agencies’ responses to ques-
tion 4(a). Seventeen agencies (23.61%) stated customer 41
See Appendix C, transit agencies’ responses to question
assistance is not one of their purposes for conducting 4(h). One transit agency (1.39%) said that it did not. Four
video surveillance. Four transit agencies (5.56%) did not transit agencies (5.56%) did not respond to the question.
respond to the question. 42
See Appendix C, transit agencies’ responses to question
35
See Appendix C, transit agencies’ responses to ques- 4(i). Five agencies (6.94%) did not respond to the question.
tion 4(b). Eighteen agencies (25%) said that they do not 43
See Appendix C, transit agencies’ responses to
use video surveillance for that purpose. Four transit agen- question 4.
cies (5.56%) did not respond to the question. 44
See Butler Transit Authority, Video Surveillance/
36
See Appendix C, transit agencies’ responses to ques- Camera Maintenance Policy, hereinafter referred to as
tion 4(c). Two transit agencies (2.78%) said that they do “Butler Video Surveillance Policy,” at 1, http://www.
not use video surveillance to deter crime. Three transit butlertransitauthority.com/wp-content/uploads/2012/12/
agencies (4.17%) did not respond to the question. Audio-and-Video-Surveillance-Policy.pdf (last accessed
37
See Appendix C, transit agencies’ responses to ques- Aug. 22, 2017); Greater Portland Transit District, Policy
tion 4(e). Three transit agencies (4.17%) did not respond. Governing Purpose and Use of Visual and Audio on Board
38
See Appendix C, transit agencies’ responses to question Surveillance Cameras, hereinafter referred to as “Greater
4(f). Three transit agencies (4.17%) said that they do not. Portland Transit District Surveillance Camera Policy,”
http://gpmetrobus.net/index.php/inside-metro3/
39
See Appendix C, transit agencies’ responses to ques-
surveillance-cameras (last accessed Aug. 22, 2017); and
tion 4(g). Three transit agencies (4.17%) reported that
Sun Tran, Safety & Security, About Sun Tran, http://www.
they do not. Four transit agencies (5.56%) did not respond
suntran.com/about_safety.php (last accessed Aug. 22, 2017).
to the question. 45
See Appendix C, transit agencies’ responses to question
40
See Appendix C, transit agencies’ responses to ques-
5. Three agencies (4.17%) did not respond to the question.
tion 4(d). One transit agency (1.39%) said that it does not.
Three transit agencies (4.17%) said that they do not.
46
See Appendix C, transit agencies’ responses to question
16. Nine agencies (12.50%) reported that they do not pro-
vide notice to the public. Four agencies (5.56%) did not
respond to the question.

Copyright National Academy of Sciences. All rights reserved.

Legal Implications of Video Surveillance on Transit Systems

Transportation Authority gives notice on its buses claim for wrongful video surveillance when the
and in its transit centers of its use of video surveil- agency shows that prior to adopting a system, the
lance.47 As for whether any part of an agency’s video agency assessed the system’s impact “on constitu-
surveillance system is kept secret, six agencies tional rights and values,” sought to minimize any
(8.33%) stated that they keep part of their video negative effects that the system could have on
surveillance system secret (e.g., hidden cameras) affected individuals, established “technological and
from the public or from employees. However, sixty- administrative safeguards to reduce the potential
four agencies (88.89%) reported that they do not for misuse and abuse,” and implemented a video
keep any part of their systems secret.48 surveillance system after a thoroughly “open and
Some state statutes specify when the use of video publicly accountable process.”53 Transit agencies
surveillance is lawful.49 For example, in New York, a responding to the survey described the process their
state statute provides that video surveillance that agency used when deciding to implement a video
otherwise would be unlawful is lawful when law surveillance system, including any public hearings
enforcement personnel are engaged in the conduct or other non-agency participation. However, no tran-
of their authorized duties, when a written notice is sit agency responding to the survey reported having
posted conspicuously on the premises stating that a either public hearings or any non-agency participa-
video surveillance system has been installed for the tion in the decision-making process.54
purpose of security, or when video surveillance The American Bar Association’s Standards on
devices are installed in such a manner “that their Technologically Assisted Physical Surveillance
presence is clearly and immediately obvious.”50 recommend that video surveillance be utilized only
Appendix E includes copies of some of the notices “‘when a politically accountable governmental
of video or of audio and video surveillance used by authority concludes that the surveillance will not
transit agencies. Additionally, a transit agency’s view a private activity or condition and will be reason-
website may state whether and how the agency ably likely to achieve a legitimate law enforcement
gives notice to the public of video surveillance.51 objective.’”55 Thus, a transit agency’s use of video
surveillance should be proportional to the agency’s
III. PRIVACY RISKS ASSOCIATED WITH need for surveillance and embrace certain “core prin-
TRANSIT AGENCIES’ USE OF VIDEO ciples”; for example, a system should be adopted only
SURVEILLANCE for “a clearly articulated law enforcement purpose” to
address “serious threats to public safety…of indefi-
A. Standards and Guidelines for nite duration”56 and after the agency’s consideration
Video Surveillance of alternatives, including their costs.57 Although there
Although a public transit agency’s video surveil- apparently are no decisions in which the courts have
lance of public areas and the agency’s workplace adopted the foregoing standards and core principles,
appears to be constitutional, a transit agency’s video these are the kinds of principles that courts could
surveillance system could be challenged because of an adopt as technology and the law continue to evolve on
alleged violation of a person’s reasonable expectation public video surveillance.58
of privacy in a specific area, a violation of a statute, or Eight transit agencies (11.11%) responding to
a violation of a person’s common law right to privacy. the survey stated that they adopted a video surveil-
Although there is an absence of governing legisla- lance system for a clearly stated law enforcement
tion or “legally enforceable guidelines,”52 a transit purpose or purposes.59 Eighteen transit agencies (25%)
agency may have a more robust legal defense to a 53
Guidelines for Public Video Surveillance, supra note
47
See Appendix C, Ann Arbor Transportation Authori- 6, at xii.
ty’s response to question 16. The Authority’s website also 54
See Appendix C, transit agencies’ responses to ques-
advises that the agency use video surveillance, http:// tion 6.
www.theride.org/How-to-Ride/Safety-Security (last accessed 55
Slobogin, supra note 23, at 294 (quoting American Bar
Aug. 22, 2017). Association, Standards for Criminal Justice-Electronic
48
See Appendix C, transit agencies’ responses to question Surveillance (3d ed.)).
17. Two agencies (2.78%) did not respond to the question. 56
Guidelines for Public Video Surveillance, supra note
49
See Appendix D, Compendium of Federal and State 6, at xii.
Statutes on Audio and Video Surveillance. 57
Id.
50
N.Y. Penal Code § 250.65(1) (2017). 58
See Slobogin, supra note 23, at 294–95.
51
See, e.g., Butler Video Surveillance Policy, supra note 59
See Appendix C, transit agencies’ responses to question
44, ¶ I and Greater Portland Transit District Surveillance 8. Sixty-three transit agencies (87.50%) responding to the
Camera Policy, supra note 44. survey said that they had not adopted a video surveillance
52
Greer, supra note 24, at 606. system for a clearly stated law enforcement purpose or pur-
poses. One agency (1.39%) did not respond to the question.

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Legal Implications of Video Surveillance on Transit Systems

likewise stated that they adopted the use of video a FOIA request.66 Also, unless the Authority makes
surveillance to address a serious potential threat or a special copy that converts data to a format that
threats to public safety of indefinite duration.60 Finally, may be viewed, for example, on a Windows Media
fourteen agencies (19.44%) considered alternatives Player, one must have the required software to view
prior to adopting the use of video surveillance.61 the Authority’s surveillance data.67 Internally, only
select employees may save and make copies of video
B. Long-Duration or Permanent surveillance records.68
Video Surveillance The Sacramento Regional Transit District stated
The risk to privacy by video surveillance depends that only a limited number of staff members are
on whether video surveillance is used to observe an allowed to access and download video surveillance
individual’s activity in real-time, whether the data.69 Public areas may be viewed by the District’s
surveillance is of long-duration or even permanent, employees via their intranet; however, the ability to
whether an agency records and/or archives data for manipulate a camera’s view is limited to select
a limited or an indefinite period, and/or whether supervisors and personnel assigned to the District’s
video surveillance is used to identify and track a security operations center.70 Downloading is limited
specific individual. As for identifying and tracking to a few select managers, one person in risk manage-
an individual, only twelve transit agencies (16.67%) ment, and the staff of the security operations center.71
responding to the survey reported having a video A permanent video surveillance system arguably
surveillance system that is able to identify and/or poses a greater risk to privacy.72 In United States v.
track a specific individual.62 Jones,73 involving the use of a global positioning system
Other reports and commentaries on privacy and (GPS) device attached to a vehicle, Justice Alito stated
public video surveillance argue that an agency in a concurring opinion, first, that the issue in the case
should incorporate “technological and administra- was “whether respondent’s reasonable expectations of
tive safeguards [that] reduce the potential for privacy were violated by the long-term monitoring of
misuse and abuse” of video surveillance63 and that the movements of the vehicle he drove.”74
protect individuals whose images and activities are Second, Justice Alito stated:
captured by video surveillance.64 Fifty-six transit To date…Congress and most States have not enacted stat-
agencies (77.78%) responding to the survey reported utes regulating the use of GPS tracking technology for law
enforcement purposes. The best that we can do in this case
that they have adopted technological and/or admin-
is to apply existing Fourth Amendment doctrine and to ask
istrative safeguards to prevent the misuse or abuse whether the use of GPS tracking in a particular case
of their surveillance system.65 involved a degree of intrusion that a reasonable person
For example, the Ann Arbor Transportation would not have anticipated.
Authority reported that whenever someone other Under this approach, relatively short-term monitoring of a
than the local police requests video surveillance person’s movements on public streets accords with expectations
data, which are encrypted, the individual must make of privacy that our society has recognized as reasonable.… But
the use of longer term GPS monitoring in investigations of
60
See Appendix C, transit agencies’ responses to ques- most offenses impinges on expectations of privacy.
tion 9. Fifty-one agencies (70.83%) reported that they did
not adopt a video surveillance system to address a seri- In this case, for four weeks, law enforcement agents tracked
ous potential threat or threats to public safety of indefi- every movement that respondent made in the vehicle he
nite duration. Three agencies (4.17%) did not respond to was driving. We need not identify with precision the point at
the question. which the tracking of this vehicle became a search, for the
line was surely crossed before the 4-week mark.75
61
See Appendix C, transit agencies’ responses to ques-
tion 10. Fifty-two transit agencies (72.22%) did not con- 66
See Appendix C, Ann Arbor Transportation Authority’s
sider other alternatives. Six agencies (8.33%) did not response to question 7.
respond to the question. 67
See id.
62
See Appendix C, transit agencies’ responses to ques-
tion 14. Fifty-seven agencies (79.17%) stated that their
68
See id.
system is not capable of identifying or tracking an individ-
69
See Appendix C, Sacramento Regional Transit District’s
ual. Three agencies (4.17%) did not respond to the question. response to question 7.
63
Guidelines for Public Video Surveillance, supra note
70
See id.
6, at xii. 71
See id.
64
Id. at xiii. 72
Guidelines for Public Video Surveillance, supra note
65
See Appendix C, transit agencies’ responses to ques- 6, at 16.
tion 7. Twelve transit agencies (16.67%) have not adopted 73
565 U.S. 400, 132 S. Ct. 945, 181 L. Ed. 2d 911 (2012).
technological and/or administrative safeguards. Four agen- 74
Id. at 419, 132 S. Ct. at 958, 181 L. Ed. 2d at 927
cies (5.56%) did not respond to the question. (emphasis supplied).
75
Id. at 430, 132 S. Ct. at 964, 181 L. Ed. 2d at 934
(emphasis supplied).

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Legal Implications of Video Surveillance on Transit Systems

One source argues that permanent systems was used to establish probable cause for a series of
should be used only when there are serious threats warrants for the use of GPS-monitoring.
of “indefinite duration” to public safety, such as In Garcia-Gonzalez, a federal district court in
“a persistent threat of terrorist attack”76 and/or Massachusetts noted that prior to Jones, supra, the
when there is a potential danger to critical public courts had approved without a warrant the use of
infrastructure, such as public transportation networks video surveillance of areas that were exposed to
and public utility facilities and the people using public view.85 Although the court denied the defen-
them.77 In various contexts, however, the courts have dant’s motion to suppress the evidence, the court
upheld the use of long-duration or even permanent discussed at length judicial opinions, including
video surveillance of areas that are observable also Justice Alito’s concurring opinion in Jones that had
by members of the public or by law enforcement “expressed substantial Fourth Amendment concern
agents. For example, in State v. Deese,78 the court regarding continuous video surveillance.”86 The court
upheld the admission of public transit surveillance decided, however, that its denial of the defendant’s
that showed the defendant on a bus route to the motion was compelled by controlling precedent in the
victim’s house in possession of incriminating evidence First Circuit.87 It may be noted that the Jones case
linked to the crime.79 involved a GPS and long-term monitoring of a vehicle
In United States v. Houston, the Sixth Circuit driven by the defendant, not video surveillance of a
upheld Houston’s conviction for possession of a firearm public place or even of a home or its backyard.
in violation of 18 U.S.C. § 922(g)(1). The conviction was
secured primarily on the basis of video surveillance C. Recording and Archiving of Video
over a ten-week period by a camera installed on top of Surveillance Data
a public utility pole.80 The video surveillance did not The Supreme Court or a lower court could hold
contravene the Fourth Amendment because the defen- that there are constitutional limits on the recording
dant did not have a reasonable expectation of privacy. or dissemination of information collected on the
The images that were captured were the same views public.88 Of the transit agencies responding to the
that anyone has at the same location. Addressing survey, sixty-seven agencies (93.06%) reported that
Justice Alito’s concern in Jones, supra, the court stated they retain and/or archive video surveillance images
that “the surveillance here was not so comprehensive or data.89
as to monitor Houston’s every move….”81 Thus, the One reason that the recording or archiving of
court held that the duration of the surveillance did not video surveillance data is more central to the Fourth
violate the Constitution.82 Amendment is that the creation of a digital record
In United States v. Garcia-Gonzalez,83 two law “transforms an ephemeral event into a permanent
enforcement agents used two pole cameras to surveil record.”90 In a dissenting opinion in United States v.
the defendant’s home. The images captured were White,91 Justice Harlan stated,
visible to any passerby or to an agent in a car using The impact of the practice of third-party bugging, must, I
binoculars.84 No warrant was obtained for the use of think, be considered such as to undermine that confidence
the pole cameras; however, the video surveillance and sense of security in dealing with one another that is
characteristic of individual relationships between citizens
76
Guidelines for Public Video Surveillance, supra note in a free society. It goes beyond the impact on privacy occa-
6, at 16. sioned by the ordinary type of “informer” investigation
77
Id. upheld in Lewis and Hoffa. The argument of the plurality
opinion, to the effect that it is irrelevant whether secrets
78
2014 N.C. App. LEXIS 1363, at *1, 238 N.C. App. 363,
are revealed by the mere tattletale or the transistor, ignores
768 S.E.2d 201 (Dec. 31, 2014 filed) (Unpublished).
79
Id. at *10. The defendant made a “plain error” argu- 85
Id. at *10.
ment because the defendant failed to object at trial to the 86
Id. at *25.
admission of evidence of video surveillance. Id. at *8. 87
Id. at *29 (citing United States v. Bucci, 582 F.3d 108
80
813 F.3d 282, 285 (6th Cir. 2016). See also, United States
(1st Cir. 2009)).
v. Wymer, 654 F. App’x 735, 744 (6th Cir. filed June 29, 2016)
(holding that photographs and brief video clips taken from a
88
See Slobogin, supra note 23, at 302.
pole camera of stolen trucks or trailers were admissible 89
See Appendix C, transit agencies’ responses to ques-
because the defendant did “not have a reasonable expecta- tion 12. Three agencies (4.17%) stated that they do not
tion of privacy in this area that was both visible by ‘any per- retain and/or archive images. Two agencies (2.78%) did
son traveling on the roads surrounding the [property]….)’” not respond to the question.
81
Houston, 813 F.3d at 290. 90
Marc Jonathan Blitz, The Fourth Amendment Future
82
Id. at 287–88. of Public Surveillance: Remote Recording and Other
Searches in Public Space, 63 Am. U.L. Rev. 21, 55 (2013),
83
2015 U.S. Dist. LEXIS 116312, at *1 (D. Mass. Sept. 1,
hereinafter referred to as “Blitz”; see also, Slobogin, supra
2015).
note 23, at 220.
84
Id. at *6. 91
401 U.S. 745, 91 S. Ct. 1122, 28 L. Ed. 2d 453 (1971).

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Legal Implications of Video Surveillance on Transit Systems

10

the differences occasioned by third-party monitoring and that are recorded.101 Safeguards should include identi-
recording which insures full and accurate disclosure of all fying personnel authorized to have access to data and
that is said, free of the possibility of error and oversight that
inheres in human reporting.92
restricting the sharing of data with other governmen-
tal entities or with third parties.102 In that connection,
In Whalen v. Roe,93 the Court stated that it was fifty-four transit agencies (75%) responding to the
“not unaware of the threat to privacy implicit in the survey stated that they share surveillance images or
accumulation of vast amounts of personal informa- data with other agencies or departments.103 Sixty-
tion in computerized data banks or other massive seven transit agencies (93.06%) share video surveil-
government files”94 and that in some circumstances lance data with law enforcement agencies without a
there is a “duty to avoid unwarranted disclosures” subpoena.104 Forty-four transit agencies (61.11%) share
and recognize “that in some circumstances that duty video surveillance or data with private litigants.105
arguably has roots in the Constitution.”95 Finally, it has been argued that there should be
Some states, such as California and Colorado, have no secret public video surveillance systems because
laws regarding the retention of video surveillance. In of the lack of accountability of government authori-
California, when a transit agency that is operated by ties and of individuals’ understanding of the “impli-
a city or a city and county installs a new security cations of their actions.”106 Of the transit agencies
system, the transit agency must only purchase and responding to the survey, sixty-four agencies
install equipment that is capable of storing recorded (88.89%) reported that they do not keep any part of
images for at least one year. There are statutory their video surveillance system secret.107
exceptions to the requirement, for example, when an
agency is unable after a “diligent effort” to identify a D. Use of Technology to Identify and Track
security system capable of storing recorded data for an Individual
one year.96 Moreover, unless one of the statutory Technologies that permit facial recognition and
exceptions applies, “video recordings or other record- identification and the tracking of an individual
ings made by security systems operated as part of a again arguably pose a greater risk to privacy.108 In
public transit system shall be retained for one year.”97 responding to the survey, fifty-one transit agencies
In Colorado, passive surveillance includes images (70.83%) reported that their video surveillance
recorded by transit facilities.98 Colorado requires system includes “pan-tilt” cameras and/or the ability
that only a custodian may have access to to “zoom-in” on a person or persons of interest.109
a passive surveillance record beyond the first anniversary 101
Guidelines for Public Video Surveillance, supra note
after the date of the creation of the passive surveillance
6, at xiii.
record, and up to the third anniversary after the date of the
creation of the passive surveillance record, if there has been
102
Id. at xiv.
a notice of claim filed, or an accident or other specific inci- 103
See Appendix C, transit agencies’ responses to ques-
dent that may cause the passive surveillance record to tion 15(a). Sixteen agencies (22.22%) said that they do not.
become evidence in any civil, labor, administrative, or felony Two agencies (2.78%) did not respond to the question.
criminal proceeding, in which case the passive surveillance 104
See Appendix C, transit agencies’ responses to ques-
record may be retained.99 …The custodian of a record must tion 15(b). Three agencies (4.17%) do not. Two agencies
document who accesses a record and the reason or reasons (2.78%) did not respond to the question.
for the person’s access.100 105
See Appendix C, transit agencies’ responses to ques-
tion 15(b). Twenty-five agencies (34.72%) do not. Three
One source argues that an agency should record agencies (4.17%) did not respond to the question.
and archive video surveillance data only to the extent 106
Guidelines for Public Video Surveillance, supra note
necessary for a system’s stated purposes, that there 6, at 23. See also, Adam Schwartz, Chicago’s Video Surveil-
should be protections for the “the rights of identifiable lance Cameras: A Pervasive and Poorly Regulated Threat to
individuals captured on video surveillance data,” and Our Privacy, 11 N.W. J. Tech. & Intell. Prop. 47, 51 (2013).
that there should be safeguards for the security of data
107
See Appendix C, transit agencies’ responses to ques-
tion 17. Six agencies (8.33%) keep part of their video sur-
92
Id. at 787, 91 S. Ct. at 1143–44, 28 L. Ed. 2d at 478–79 veillance system secret (e.g., hidden cameras) from the
(1971) (Harlan, J., dissenting). public or employees. Two agencies (2.78%) did not respond
to the question.
93
429 U.S. 589, 97 S. Ct. 869, 51 L. Ed. 2d 64 (1977). 108
Marc Jonathan Blitz, Video Surveillance and the
94
Id. at 605, 97 S. Ct. at 878, 51. L. Ed. 2d at 77.
Constitution of Public Space: Fitting the Fourth Amend-
95
Id. ment to a World that Tracks Image and Identity, 82 Tex. L.
96
Cal. Gov’t Code § 34090.8(a) and (a)(1) (2017). Rev. 1349, 1354 (2004) (footnote omitted), hereinafter
97
Cal. Gov’t Code § 34090.8(b)(1)–(3) (2017). referred to as “Video Surveillance and the Constitution of
98
Colo. Rev. Stat. § 24-72-113(1) (2017). Public Space.”
99
Cal. Gov’t Code § 24-72-113(2)(a) (2017).
109
See Appendix C, transit agencies’ responses to question
18. Twenty agencies’ systems (27.78%) do not have such capa-
100
Id.
bility. One agency (1.39%) did not respond to the question.

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Legal Implications of Video Surveillance on Transit Systems

11

As for cameras with capabilities for facial recog- IV. WHETHER THERE IS A RIGHT TO
nition, identification, and automatic tracking, one PRIVACY UNDER THE UNITED STATES
source asserts that such technologies are highly CONSTITUTION THAT APPLIES TO THE USE
invasive because they permit surveillance that OF VIDEO SURVEILLANCE
exceeds the power of normal observation of individ-
uals in public.110 Cameras with pan-tilt-zoom (PTZ) A. Evolution of Privacy Rights
capability raise privacy concerns because they This part of the digest addresses whether under
permit operators to target individuals, for example, current Supreme Court precedent an individual
because of their race or attractiveness.111 The ability has a constitutional right to privacy with respect
to retain and/or disseminate images permits private to a public transit agency’s use of video surveil-
activities and moments to be displayed publicly.112 lance. In brief, the answer appears to be no, because
Some localities, such as New York City, reportedly there simply “are no explicit privacy guarantees in
prohibit the use of PTZ technologies.113 Unless there the Constitution.”118
is a reasonable suspicion of criminal activity, Pitts- Presently, persons in public settings, including
burgh prohibits the use of PTZ cameras and auto- persons on highways and those using public transit,
matic tracking and identification.114 have no privacy interests of constitutional dimen-
Nevertheless, under current constitutional juris- sion. The courts have held that the Fourth Amend-
prudence, a warrant generally is not required to use ment does not apply to the videotaping of individuals
public video surveillance to identify or track someone in “public environments,”119 a view that “has been
whose image is captured by video surveillance.115 In adopted by virtually every state and federal court to
United States v. Dionisio,116 the Supreme Court stated, address the issue.”120
The physical characteristics of a person’s voice, its tone and As it is, privacy law in the United States is a
manner, as opposed to the content of a specific conversation, “disorganized body of law,”121 partly because there is
are constantly exposed to the public. Like a man’s facial
no “comprehensive national regulatory structure.”122
characteristics, or handwriting, his voice is repeatedly
produced for others to hear. No person can have a reason- Instead, privacy rights are created sporadically for a
able expectation that others will not know the sound of his specific reason, often in response to changes in tech-
voice, any more than he can reasonably expect that his face nology.123 Most privacy law in the United States is a
will be a mystery to the world.117 matter of state law and to some extent a state’s
common law, at least insofar as transit agencies’ use
Thus, notwithstanding some privacy concerns, as
of video surveillance is concerned.
this digest discusses, there appear to be few stric-
tures on transit agencies’ use of video surveillance. 118
Alexandra Fiore & Matthew Weinick, Undignified in
Defeat: An Analysis of the Stagnation and Demise of Pro-
110
ACLU Report, supra note 9, at 22. posed Legislation Limiting Video Surveillance in the
111
Id. at 21–22. Workplace and Suggestions for Change, 25 Hofstra Lab. &
112
Id. at 23–24. Emp. L. J. 525, 533 (2008), hereinafter referred to as “Fiore
& Weinick.”
113
Id. at 23 and 35 n.113 (citing NYPD, N.Y., Public
Security Privacy Guidelines, at Part III(C) (effective Apr. 2,
119
Video Surveillance and the Constitution of Public
2009) (stating that “[f]acial recognition technology is not Space, supra note 108, at 1378.
utilized.”) Washington, D.C., and Salt Lake City prohibit
120
Id. at 1379, & n.62 (citing United States v. Sherman,
PTZ aiming at or magnification of activities protected by 990 F.2d 1265 (9th Cir. 1993) (no expectation of privacy on
the First Amendment without reasonable suspicion. Id. at a mountaintop); State v. Augafa, 992 P.2d 723, 724 (Haw.
22 and 35 n. 111 (citing D.C. Code Mun. Regs., tit. 24, Ct. App. 1999) (no expectation of privacy at a bar); State v.
ch. 25, Metropolitan Police Department Use of Closed Holden, 964 P.2d 318, 321 (Utah Ct. App. 1998) (no expec-
Circuit Television, at § 2501.3; Salt Lake City Police tation of privacy in a front yard); People v. Lynch, 179 Mich.
Department, Public Space Cameras Policy, at 4, Restric- App. 63, 69–70 (1989) (finding no expectation of privacy in
tion #3 (Feb. 18, 2009). Denver prohibits discriminatory the common area of a public restroom); and Sponick v. City
PTZ use. Id. at 22 and 35, 112 (citing Denver Police Depart- of Detroit Police Dep’t, 49 Mich. Ct. App. 162, 198 (1973) (no
ment, Operations Manual, Closed Circuit Television Policy, expectation of privacy in a public tavern)).
at § 119.01(2)(b) (revised Jan. 2009)). 121
Alain J. Lapter, How the Other Half Lives (Revisited):
114
City of Pittsburgh, Pennsylvania Code of Ordinances Twenty Years since Midler v. For A Global Perspective on the
§ 681.02(e) (2017). Right of Publicity, 15 Tex. Intell. Prop. L. J. 239, 247 (2007).
115
United States v. Garcia-Gonzalez, No. 14-10296, 2015
122
Frank Douma & Jordan Deckenbach, The Challenge
U.S. Dist. LEXIS 116312, at *1 (D. Mass. Sept. 1, 2015) of ITS for the Law of Privacy, 2009 U. Ill. J.L. Tech &
(holding that a warrant was not required to use cameras Pol’y 295 (2009), hereinafter referred to as “Douma &
that tracked the defendant near his home). See Guidelines Deckenbach.”
for Public Video Surveillance, supra note 6, at 27. 123
Thomas Garry, Frank Douma, & Stephen Simon,
116
410 U.S. 1, 93 S. Ct. 764, 35 L. Ed. 2d 67 (1973). Intelligent Transportation Systems: Personal Data Needs
117
Id. at 14, 93 S. Ct. 771, 35 L. Ed. 2d 79. and Privacy Law, 39 Transp. L. J. 97, 102 (2012), hereinaf-
ter referred to as “Garry, Douma, & Simon.”

Copyright National Academy of Sciences. All rights reserved.

Legal Implications of Video Surveillance on Transit Systems

12

Privacy rights have been defined as the right both because the “specific guarantees in the Bill of Rights
to control the dissemination of one’s information124 have penumbras, formed by emanations from those
and the right to be free from government intrusion.125 guarantees that help give them life and substance.…
Although a “cluster of constitutional rights” protects Various guarantees create zones of privacy.”135 Thus,
citizens from various forms of government intrusion, the “right of association” is guaranteed by the First
decisions by the United States Supreme Court in Amendment; the “right of the people to be secure in
recent years have narrowed an individual’s zone of their persons, houses, papers, and effects…against
privacy protected by the United States Constitution.126 unreasonable searches and seizures” is secured by
An article published in 1890 by Samuel D. Warren the Fourth Amendment; and a “zone of privacy which
and Louis D. Brandeis entitled “The Right to government may not force [a person] to surrender to
Privacy”127 articulated a basis for a right to privacy in his detriment” exists under the Fifth Amendment.136
the United States.128 Although some courts after the Because the constitutional guarantees created a
Warren and Brandeis article held that privacy rights zone of privacy, a “governmental purpose to control
are fundamentally rooted in natural law,129 other or prevent activities constitutionally subject to state
courts rejected claims that a right to privacy exists.130 regulation may not be achieved by means which
A leading case on privacy rights is the United sweep unnecessarily broadly and thereby invade the
States Supreme Court’s 1965 decision in Griswold v. area of protected freedoms.”137 In a concurring opin-
Connecticut131 in which the Court held that there is a ion, Justice Goldberg stated that, because personal
right to privacy under the Constitution.132 In Gris- liberties are grounded in “traditions and conscience,”
wold, the petitioners were physicians who had people’s liberties are “not confined to the specific
provided their patients with contraceptives in viola- terms of the Bill of Rights.”138
tion of Connecticut law.133 When the petitioners After the Griswold decision, the Supreme Court
argued that the Connecticut statute violated the and lower courts at first interpreted the scope of
Fourteenth Amendment, the Court agreed that the privacy rights to include a “seemingly disparate clus-
petitioners had “standing to raise the constitutional ter of constitutional rights against government intru-
rights of the married people with whom they had a sion.”139 As privacy rights evolved after Griswold,
professional relationship.”134 However, the Court also they came to include protection against “government
held that there is a constitutional right to privacy, intrusion into a person’s mind and thought
processes,”140 “intrusion into a person’s zone of private
124
J. Thomas McCarthy, 1 The Rights of Publicity and
seclusion,”141 and “intrusion into a person’s right to
Privacy, 2017 ed. at § 1.6, p. 9 n. 4 (citing United States
Department of Justice v. Reporters Comm. for Freedom of make certain personal decisions, such as whether to
Press, 489 U.S. 749, 761, 109 S. Ct. 1468, 1775–76, 103 L. Ed. use contraceptives or have an abortion.”142
2d 774, 788 (1989)), hereinafter referred to as “McCarthy.” However, more recently the Supreme Court and
125
Ken Gormley, One Hundred Years of Privacy, 1992 other courts have limited the zone of privacy estab-
Wis. L. Rev. 1335, 1361 (1992). lished by the Griswold case and its progeny.143 In
126
McCarthy, supra note 124, at § 5.57, p. 498. 1987, in Borucki v. Ryan,144 the First Circuit agreed
127
Samuel D. Warren & Louis D. Brandeis, The Right
to Privacy, 4 Harv. L. Rev. 193 (1890), hereinafter 135
Id. at 484, 85 S. Ct. at 1681, 14 L. Ed. 2d at 514
referred to as “Warren & Brandeis.” (citation omitted).
128
McCarthy, supra note 124, at § 1.10, pp. 16–17. The 136
Id. at 484, 85 S. Ct. at 1681, 14 L. Ed. 2d at 515.
authors posited that an individual should have a legal 137
Id. at 485, 85 S. Ct. at 1682, 14 L. Ed. 2d at 516
remedy when the press “overstep[s] in every direction … (internal citation omitted).
the obvious bounds of propriety and of decency.” Warren & 138
Id. at 486, 85 S. Ct. at 1683, 14 L. Ed. 2d at 516
Brandeis, supra note 127, at 196. Although Warren and (Goldberg, J., concurring).
Brandeis recognized six limitations on the right to privacy,
they argued that society should uphold an individual’s
139
McCarthy, supra note 124, at § 5.57, p. 498.
privacy rights and that a violation of privacy rights should
140
Id. & n.1 (citing Ramie v. City of Hedwig Village,
be remediable either by compensation or in rare cases by Tex., 765 F.2d 490, 492 (5th Cir. 1985)).
an injunction. Id. at 219–20. 141
Id. n.3 (citing Stanley v. Georgia, 394 U.S. 557, 89 S.
129
McCarthy, supra note 124, at § 1.16, p. 25, n.1 (citing Ct. 1243, 22 L. Ed. 2d 542 (1969)).
Roberson v. Rochester Folding Box Co., 171 N.Y. 538, 64 142
Id. pp. 498–99. See Paul v. Davis, 424 U.S. 693, 713,
N.E. 442 (N.Y. 1902)). 96 S. Ct. 1155, 47 L. Ed. 2d 405 (1976) and Bowers v. Hard-
130
Id. at § 1.17 (citing Pavesich v. New England Life Ins. wick, 478 U.S. 186, 106 S. Ct. 2841, 92 L. Ed. 2d 140 (1986).
Co., 122 Ga. 190, 50 S.E. 68 (Ga.1905)). 143
James D. Phillips & Katharine E. Kohm, Current
131
381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965). and Emerging Transportation Technology: Final Nails in
132
Id. at 485–86, 85 S. Ct. at 1682, 14 L. Ed. 2d at 515–16. the Coffin of the Dying Right of Privacy, 18 Rich. J. L. &
Tech. 1, 6 (2011–2012), hereinafter referred to as “Phillips
133
Id. at 480, 85 S. Ct. at 1679, 14 L. Ed. 2d at 512 & Kohm.”
(citing Conn. Gen. Stat. §§ 53-32, 54-196 (1958)). 144
827 F.2d 836 (1st Cir. 1987).
134
Id. at 481, 85 S. Ct. at 1679, 14 L. Ed. 2d at 512.

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Legal Implications of Video Surveillance on Transit Systems

13

that since the Griswold decision a “‘right of personal the Fourteenth Amendment. The first interest
privacy, or a guarantee of certain areas or zones of has to do with “independence in making certain
privacy, does exist under the Constitution.’”145 Never- kinds of important decisions,” such as “matters
theless, the court held that the right to privacy does relating to procreation, marriage, contraception,
not emanate from the “penumbra of other funda- family relationships, and child rearing and educa-
mental rights” but is “founded” in the Fourteenth tion.”154 The second privacy interest recognized by
Amendment’s “concept of personal liberty.”146 The the Supreme Court is “in avoiding disclosure of
Borucki court recognized that the Third and Fifth personal matters.”155
Circuits had held “that there is an independent right Nevertheless, in regard to a privacy interest in
of confidentiality applicable to personal information avoiding disclosure of personal data, the Sixth
contained in medical, financial, and other personal Circuit stated in Lambert that the court had
records.”147 However, the court held that the “[t]he “recognized an informational-privacy interest of
personal rights found in this guarantee of personal constitutional dimension in only two instances:
privacy must be limited to those which are ‘funda- (1) where the release of personal information could
mental’ or ‘implicit within the concept of ordered lead to bodily harm…and (2) where the information
liberty….’”148 Although the court recognized that released was of a sexual, personal, and humiliating
“[m]ost of the courts finding a right of confidentiality nature….”156 Neither of the two categories seems to
had used a balancing test to assess violations of apply to transit agencies’ use of video surveillance
that right,”149 the First Circuit held that the plain- for the purposes described in part II of this digest.
tiff’s complaint based on the prosecutor’s disclosure The Lambert court stated that the holdings in
of information about the plaintiff’s competency to Whalen v. Roe157 and in Nixon v. Administrator of
stand trial in another case failed to state a claim.150 General Services158 had been “narrowly construed” so
In 1998, in Kallstrom v. City of Columbus,151 the as “‘to extend the right to informational privacy only
Sixth Circuit held that it is only when an individu- to interests that implicate a fundamental liberty
al’s privacy interest is one of “constitutional dimen- interest.’”159 The Lambert court’s analysis appears to
sion” that the court will find it necessary to “balance impose an additional requirement before a constitu-
an individual’s interest in nondisclosure of infor- tional privacy interest would be implicated—the
mational privacy against the public’s interest in state’s action in disclosing personal data must have
and need for the invasion of privacy….”152 More- “created a special danger” that led to the plaintiff’s
over, as the same court would explain later in 2008 harm or humiliation.160 The Lambert court was clear
in Lambert v. Hartman,153 the Supreme Court has that the government’s disclosure, for example, of a
identified only two types of interests that come person’s Social Security number does not rise to the
within the substantive due process protection of level of a “fundamental right” or a right that is
“‘deeply rooted in this Nation’s history and tradition’
145
Id. at 839 (quoting Roe v. Wade, 410 U.S. 113, 152, 93
or ‘implicit in the concept of ordered liberty.’”161
S. Ct. 705, 35 L. Ed. 2d 147 (1973)).
As noted, privacy law in the United States is
146
Id. discussing Whalen v. Roe, 429 U.S. 589, 598–99
n. 23, 97 S. Ct. 869, 51 L. Ed. 2d 64 (1977)). largely a creature of state law. At least one Supreme
147
Id. at 845 (citing United States v. Westinghouse Elec- Court justice has suggested that state legislatures
tric Corp., 638 F.2d 570 (3rd Cir. 1980); Plante v. Gonzalez, are better suited than are the federal courts to
575 F.2d 1119, 1132 (5th Cir. 1978), cert. denied, 439 U.S.
1129, 99 S. Ct. 1047, 59 L. Ed. 2d 90 (1979); Duplantier v. 154
Id. at 440 (citations omitted) (internal quotation
United States, 606 F.2d 654, 670 (5th Cir. 1979), cert. marks omitted).
denied, 449 U.S. 1076, 101 S. Ct. 854, 66 L. Ed. 2d 798 155
Id. (citations omitted) (internal quotation marks
(1981); and Fadjo v. Coon, 633 F.2d 1172 (5th Cir. 1981)). omitted).
148
Id. at 839 (some internal quotation marks and cita- 156
Id.
tions omitted). 157
Whalen v. Roe, 429 U.S. 589, 97 S. Ct. 869, 51 L. Ed.
149
Id. at 848 (citations omitted). 2d 64 (1977) (Supreme Court unanimously holding that
150
Id. at 849. New York State had the right to collect data about indi-
151
136 F.3d 1055 (6th Cir. 1998) (overruled in part as viduals and create a database if for the public good and
stated in Frost v. Blom, No. 10-1176, 2011 U.S. Dist. LEXIS with adequate security measures taken to protect the
52571, at *12 (W.D. Mo. May 17, 2011) (stating that the privacy and identification of individuals).
Eighth Circuit has rejected the Kallstrom decision because 158
433 U.S. 425, 97 S. Ct. 2777, 53 L. Ed. 2d (1977).
the court “erroneously applied a negligence standard 159
Lambert, 517 F.3d at 440 (citation omitted).
instead of the subjective deliberate indifference standard”) 160
Id. at 439 (citations omitted).
(citation omitted)). 161
Id. at 443 (citations omitted).
152
Id. at 1061 (citation omitted).
153
517 F.3d 433 (6th Cir. 2008).

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Legal Implications of Video Surveillance on Transit Systems

14

decide whether privacy rights should be enlarged. In that a person’s reasonable expectation of privacy is
a concurring opinion in Riley v. California,162 Justice reduced when the privacy interest concerns travel
Alito stated, or other activities conducted in public.169
In light of these developments [the growing privacy In Katz v. United States,170 the Supreme Court
concerns of modern technology], it would be very unfortu- held that because the FBI failed to obtain a warrant
nate if privacy protection in the 21st century were left prior to listening to and recording the petitioner’s
primarily to the federal courts using the blunt instrument
conversations, the petitioner’s conviction had to
of the Fourth Amendment. Legislatures, elected by the
people, are in a better position than we are to assess and be reversed.171 Relevant to the issue of the use of
respond to the changes that have already occurred.163 video surveillance, however, is that the Katz Court
stated that, “The Fourth Amendment cannot be
Justice Alito’s opinion is that the “Court is poorly translated into a general constitutional ‘right to
positioned to understand and evaluate” sensitive privacy.”172 Furthermore, “What a person knowingly
privacy interests arising, for example, from the use exposes to the public…is not a subject of Fourth
of modern cell phones.164 Amendment protection.”173
Presently, there is neither a “specific constitu- Although Supreme Court precedents since Katz
tional right to privacy,” nor is there a constitutional fail to show a “clear pattern” on what the “acceptable
right to privacy in one’s personal or locational infor- limits of government action” are under the Fourth
mation, such as may be implicated by video surveil- Amendment,174 the Supreme Court “has not found
lance systems.165 Thus, there is no constitutional information about an individual’s activities in public
prohibition of the government, or more particularly, to be protected.”175 A case relevant to whether a
of government-owned transit agencies to use video government-owned transit agency’s use of video
surveillance. Another factor that augurs well for the surveillance could violate the Fourth Amendment is
constitutionality of transit agencies’ use of video United States v. Knotts,176 a 1983 decision. In Knotts,
surveillance is that transit agencies give notice to Minnesota law enforcement officers had placed a
transit customers and others that they are subject beeper in a drum containing chloroform purchased
to video surveillance.166 In some court decisions, by the respondent’s codefendants to track them from
prior notice of government actions has been crucial Minnesota to a cabin in Wisconsin.177 The law
in upholding their legality.167 enforcement agents obtained a search warrant for
the cabin, discovered a drug lab on the premises, and
B. The Fourth Amendment and a charged the respondent with conspiracy to manufac-
Constitutional Right to Privacy ture controlled substances.178 The respondent argued
This part of the digest discusses whether a that his conviction had to be reversed because the
government-owned transit agency’s use of video use of the beeper to track his movements violated his
surveillance violates a person’s rights under the right to privacy under the Fourth Amendment.179
Fourth Amendment by observing that person in a The Knotts Court held that there is “no reason-
public place, or even recording and archiving a able expectation of privacy” for “a person traveling
person’s images for a specified period, without a in an automobile on public thoroughfares.”180 Thus,
warrant. Under the Fourth Amendment, “warrant- 169
Id. at 1314–15 (citations omitted).
less searches are permissible only when an individ- 170
389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967).
ual has a substantially reduced expectation of
Some courts regard the Katz decision as having been
privacy.”168 Although the collection or disclosure of abrogated or superseded. See, e.g., State v. Earls, 214 N.J.
video surveillance data by government agencies 564, 70 A.3d 630 (2013) (stating abrogated) and United
may raise privacy concerns, the courts have held States v. Koyomejian, 946 F.2d 1450 (9th Cir. Cal. 1991)
(stating superseded).
162
134 S. Ct. 2473, 189 L. Ed. 2d 430 (2014). 171
Katz, 389 U.S. at 358–59, 88 S. Ct. at 515, 19 L. Ed.
163
Id. at 2497, 189 L. Ed. 2d at 456 (Alito, J., concurring). 2d at 586.
164
Id. at 2497, 189 L. Ed. 2d at 455. 172
Id. at 350, 88 S. Ct. at 510, 19 L. Ed. 2d at 581
165
Phillips & Kohm, 143 note 137, at 4. (footnotes omitted).
166
See Appendix C, transit agencies’ responses to
173
Id. at 351, 88 S. Ct. at 511, 19 L. Ed. 2d at 582
question 16. (citation omitted).
167
Slobogin, supra note 23, at 297 quoting United
174
Phillips & Kohm, supra note 143, at 35.
States v. Martinez-Fuerte, 428 U.S. 543, 559, 96 S. Ct. 3074, 175
Douma & Deckenbach, supra note 122, at 305.
3084, 49 L. Ed. 2d 1116, 1129 (1976), and at 298 quoting 176
460 U.S. 276, 103 S. Ct. 1081, 75 L. Ed. 2d 55 (1983).
Nat’l Treas. Employees Union v. Von Raab, 489 U.S. 656, 177
Id. at 277, 103 S. Ct. at 1083, 75 L. Ed. 2d at 59.
672, 109 S. Ct. 1384, 1394, 103, L. Ed. 2d 635, 706 (1989). 178
Id. at 277–79, 103 S. Ct. at 1084, 75 L. Ed. 2d at 59–60.
168
Bourgeois v. Peters, 387 F.3d 1303, 1314 (11th Cir.
2004).
179
Id. at 279, 103 S. Ct. at 1084, 75 L. Ed. 2d at 60.
180
Id. at 281, 103 S. Ct. at 1085, 75 L. Ed. 2d at 62.

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Legal Implications of Video Surveillance on Transit Systems

15

law enforcement could place a beeper in a container government to obtain a multiple count indictment.
and monitor the movements of the car in which the The district court suppressed the admission of data
defendant placed the container.181 The only issue in obtained while the Jeep was parked in a garage adja-
Knotts was whether the monitoring of the car, not cent to the Jones’ residence but allowed the admission
the installation of the beeper in the container, was a of the remaining data on the basis that “‘[a] person
violation of the Fourth Amendment. The Court held traveling in an automobile on public thoroughfares
that the government’s action in monitoring the has no reasonable expectation of privacy in his move-
beeper signals was neither a “search” nor a “seizure” ments from one place to another.’”191 The District of
within the meaning of the Fourth Amendment; Columbia Circuit Court reversed the conviction
therefore, a warrant was not required.182 The Court because of the admission of evidence obtained by the
reversed the appellate court’s reversal of the appel- “warrantless use of the GPS device….”192
lant’s conviction.183 In an opinion by Justice Scalia, the Supreme Court
Likewise, regarding a transit customer’s public unanimously affirmed the circuit court’s decision.
activity, in 1999 in Wyoming v. Houghton,184 the Justice Scalia explained that the Court was not aban-
Supreme Court held that a police officer’s search of a doning prior precedent that a violation of the Fourth
passenger’s purse during a traffic stop was a legiti- Amendment occurs when government officers violate
mate exception to the warrant requirement of the a person’s “‘reasonable expectation of privacy….’”193
Fourth Amendment. The Court, in an opinion by Justice Scalia further explained that the Court’s deci-
Justice Scalia, held that although the search intruded sion in Jones was entirely consistent with its prior
on the passenger’s privacy, “the governmental inter- decisions because “the Katz reasonable-expectation-of-
ests at stake [were] substantial.”185 Furthermore, privacy test has been added to, not substituted for, the
because a passenger’s privacy interests are “consid- common-law trespassory test.”194 In other cases, the
erably diminished”186 when the passenger is travel- government had installed a beeper in property that
ing on a public thoroughfare, the weighing of the belonged to a third party with the consent of the origi-
passenger’s and the government’s interests “militate nal owner of the property and before the property came
in favor of the needs of law enforcement.”187 into the possession of the defendant; thus, in those
Being on a public highway or a public transit cases there was no violation of the Fourth Amend-
system does not obviate completely, of course, a ment.195 In this case, Jones possessed the Jeep before
person’s right to a reasonable expectation of privacy “the Government trespassorily inserted the informa-
protected by the Fourth Amendment. In 2009, in tion-gathering device,” a detail that put the Jones case
Arizona v. Gant,188 the Court stated that “[a]lthough “on a much different footing.”196 Thus, the “physical
we have recognized that a motorist’s privacy inter- intrusion” that occurred in the Jones case “would have
est in his vehicle is less substantial than in his been considered a ‘search’ within the meaning of the
home…the former interest is nevertheless impor- Fourth Amendment when it was adopted.”197
tant and deserving of constitutional protection.”189 Relevant to this digest is the fact that Justice Scalia
Thus, in 2012, in United States v. Jones,190 the stated in Jones that “[s]ituations involving merely the
Supreme Court held that the government’s installa- transmission of electronic signals without trespass…
tion without a warrant of a GPS device on a vehicle remain subject to Katz analysis.”198 To date, the Court
to monitor the vehicle was a search under the Fourth has “not deviated from the understanding that mere
Amendment. Over a four-week period, the device visual observation does not constitute a search.”199
relayed over 2,000 pages of data, allowing the Justice Scalia reiterated that “‘[a] person traveling
in an automobile on public thoroughfares has no
181
Id. at 277–80, 103 S. Ct. at 1083–84, 75 L. Ed. 2d at
59–60. 191
Id. at 403, 132 S. Ct. at 948, 181 L. Ed. 2d at 917
182
Id. at 284–85, 103 S. Ct. at 1087, 75 L. Ed. 2d at 64. (citation omitted).
183
Id. at 285, 103 S. Ct. at 1087, 75 L. Ed. 2d at 64. 192
Id. at 400, 132 S. Ct. at 946, 181 L. Ed. 2d at 915
184
526 U.S. 295, 119 S. Ct. 1297, 143 L. Ed. 2d 408 (citation omitted).
(1999). 193
Id. at 406, 132 S. Ct. at 950, 181 L. Ed. 2d at 919
185
Id. at 304, 119 S. Ct. at 1302, 143 L. Ed. 2d at 417. (citations omitted).
186
Id. at 306, 119 S. Ct. at 1302, 143 L. Ed. 2d at 417.
194
Id. at 409, 132 S. Ct. at 952, 181 L. Ed. 2d at 921
187
Id. at 306, 119 S. Ct. 1303, 143 L. Ed. 2d at 418. (emphasis in original).
188
556 U.S. 332, 129 S. Ct. 1710, 173 L. Ed. 2d 485
195
Id.
(2009) (holding that the police are authorized to search a
196
Id. at 410, 123 S. Ct. at 952, 181 L. ED. 2d at 921.
vehicle incident to an arrest only when the person under 197
Id. at 404–05, 132 S. Ct. at 949, 181 L. Ed. 2d at 920.
arrest was unsecured and within reaching distance of the 198
Id. at 411, 132 S. Ct. at 954, 181 L. Ed. 2d at 922
passenger compartment at the time of the search). (emphasis in original).
189
Id. at 345, 129 S. Ct. at 1720, 173 L. Ed. 2d at 497. 199
Id. at 412, 132 S. Ct. at 953, 181 L. Ed. 2d at 922 (citing
190
565 U.S. 400, 132 S. Ct. 945, 181 L. Ed. 2d 911 (2012). Kyllo, 533 U.S. at 31–32, 121 S. Ct. 2038, 150 L. Ed. 2d at 941).

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Legal Implications of Video Surveillance on Transit Systems

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reasonable expectation of privacy in his movements Fourth Amendment does not bar all warrantless
from one place to another.’”200 searches, only warrantless searches that are unrea-
A violation of the Fourth Amendment occurs when sonable.210 Thus, a warrant is not required to conduct
the government violates a person’s reasonable expecta- public video surveillance because the surveillance of
tion of privacy without a warrant.201 However, the use matters that are visible to ordinary observation is
by transit agencies of video surveillance does not not an unreasonable search.211
involve a warrantless physical trespass and search as As one commentator states, the assumption is
occurred in the Jones case. Notably, the Jones Court did that courts in the United States
not decide whether the collection of the same informa- are not likely to find unregulated public camera viewing
tion electronically and non-trespassorily that is avail- inimical to the Constitution or any other established body of
able by visual observation would be an unconstitutional law.… [A]ll courts that have considered application of the
Fourth Amendment to cameras aimed at public streets or
invasion of privacy. The Court stated that an attempt other areas frequented by a large number of people have
to answer that question in the Jones case would “lead[] declared that such surveillance is not a search, on the
us needlessly in additional thorny problems.”202 Never- ground that any expectation of privacy one might have in
theless, the Court’s opinions in Gant and Jones, supra, these areas is unreasonable.212
illustrate the Supreme Court’s appreciation of the
privacy issues presented by the use of technology to Accordingly, the Supreme Court has held that
collect and retain data on individuals. In a concurring aerial surveillance of a home’s curtilage or property
opinion in Jones, Justice Sotomayor observed that the outside a factory conducted from a plane or helicop-
use of electronic surveillance may “‘alter the relation- ter is not a search that is subject to the Fourth
ship between citizen and government in a way that is Amendment.213 The Court has allowed “generalized
inimical to democratic society.’”203 suspicionless surveillance [in] workplaces, schools,
In 2014, although the case did not involve video 210
Id. at 1359.
surveillance data, the Supreme Court held in Riley v. 211
Id. at 1379.
California204 that, absent a warrant, the police may 212
Slobogin, supra note 23, at 235–36, n. 106 (citing
not search digital information on a cell phone seized United States v. Jackson, 213 F.3 1269, 1281 (10th Cir. 2000)
from an individual who has been arrested.205 Because (covert video cameras on a telephone pole overlooking out-
cell phones contain “vast quantities of personal infor- side of defendants’ residences); United States v. Reed, 2000
mation,” searches of cell phones are distinguishable U.S. App. LEXIS 22684, *8 (9th Cir. 2000) (covert video of
from other physical searches.206 Searches of cell shared hallway of an apartment complex); United States v.
McIver, 186 F.3d 1119 (9th Cir. 1999) (unmanned video in
phones “implicate privacy concerns far beyond those national forest); Rodriguez v. United States, 878 F. Supp. 20,
implicated by the search of a cigarette pack, a wallet, 24 (S.D.N.Y.1995) (covert video surveillance of activities on
or a purse.”207 Finally, the Court observed that the public street); Vermont v. Costin, 720 A.2d 866, 867 (Vt. 1998)
“fact that technology now allows an individual to (covert video of private but unposted fields 150 yards from
carry such [private] information in his hand does not defendant’s house); State v. Augafa, 992 P.2d 723, 732–33
(Haw. Ct. App. 1999) (video of defendant on public sidewalk
make the information any less worthy of the protec- using camera on a pole nearby); McCray v. State, 581 A.2d 45,
tion for which the Founders fought.”208 47–48 (Md. App. 1990) (covert video of defendant crossing
The courts have upheld the constitutionality of the street); Vega-Rodriguez v. Puerto Rico Tel. Co., 110 F.3d
video surveillance on various grounds; for example, 174, 181 (1st Cir. 1997) (covert video of workers in an “open
public video surveillance is not a “search” within the and undifferentiated work area”); Michigan v. Lynch, 179
Mich. App. 63, 445 N.W.2d 803 (1989) (covert video of com-
meaning of the Fourth Amendment.209 Moreover, the mon area of restroom); Young v. State, 849 P.2d 336, 340–42
(Nev. 1993) (covert video of door-less bathroom stall); Sponick
200
Id. at 412, 132 S. Ct. at 953, 181 L. Ed. 2d at 923 v. City of Detroit Police Dept., 49 Mich. App. 162, 211 N.W.2d
(citation omitted). 674 (1973) (covert video of defendant talking in public bar);
201
Id. at 406, 132 S. Ct. at 950, 181 L. Ed. 2d at 919. United States v. McMillon, 350 F. Supp. 593 (D.D.C. 1972)
202
Id. at 412, 132 S. Ct. at 954, 181 L. Ed. 2d at 923. (video of backyard not a search); People v. Wemette, 728
203
Id. at 416, 132 S. Ct. at 956, 181 L. Ed. 2d at 925 N.Y.S.2d 805, 805 (N.Y. App. Div. 2001) (videotaping defen-
(Sotomayor, J., concurring) (quoting United States v. dant on his open front porch exposed to plain view of public
Cuevas-Perez, 640 F.3d 272, 285 (7th Cir. 2011) (vacated did not infringe any reasonable expectation of privacy); State
and remanded, 2012 U.S. LEXIS 1667 (U.S., Feb. 21, 2012))). v. Holden, 964 P.2d 318, 320–22 (Utah Ct. App. 1998) (video-
tape of front yard from neighbor’s window not a search). But
204
573 U.S.____, 134 S. Ct. 2473, 189 L. Ed. 2d 430 (2014).
see United States v. Cuevas Sanchez, 821 F.2d 248 (5th Cir.
205
Id., 134 S. Ct. at 2485, 2495, 189 L. Ed. 2d at 442, 452. 1986) (prolonged video surveillance of backyard is a search)).
206
Id. at 2485, 189 L. Ed. 2d at 442. 213
Blitz, supra note 90, at *44 (citing Florida v. Riley, 488
207
Id. at 2489, 189 L. Ed. 2d at 446. U.S. 445, 449–50 (1989) (plurality opinion) (curtilage of a
208
Id. at 2495, 189 L. Ed. 2d at 452. home); Dow Chem. Co., 476 U.S. at 239 (industrial complex);
209
Video Surveillance and the Constitution of Public California v. Ciraolo, 476 U.S. 207, 217, 106 S. Ct. 1809,
Space, supra note 108 at 1357 (footnote omitted). 1814, 90 L. Ed. 2d 210, 219 (1986) (curtilage of a home)).

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Legal Implications of Video Surveillance on Transit Systems

17

and high security zones, where people are already in favor of anonymity may be motivated by fear of
subject to a substantial degree of oversight and economic or official retaliation, by concern about
constraint.”214 As one source notes, “[e]ven in the social ostracism, or merely by a desire to preserve as
absence of any information that a terrorist attack is much of one’s privacy as possible.”221 Nevertheless,
‘imminent’…courts have allowed ongoing suspicion- based on Supreme Court precedents the First
less searches to detect weapons at airports and Amendment’s guarantees of free speech or associa-
federal buildings.”215 tion are not “likely to provide a basis for constitu-
tional regulation of most public surveillance, at least
C. Whether a Person in Public Retains a Right when it is visual only.”222
to Anonymity Another argument is that there is a right to
There are no meaningful constraints on “sophisti- anonymity based on a constitutional right to travel, a
cated technology that allows the government to right that is arguably “compromised” when the public
watch, zoom in on, track, and record the activities of is subjected to video surveillance.223 In Saenz v. Roe,224
anyone, anywhere in public, twenty-four hours a in an opinion by Justice Stevens, the Court stated,
day….”216 Although there may not be a reasonable The word “travel” is not found in the text of the Constitu-
expectation of privacy in public places, there is some tion. Yet the “constitutional right to travel from one State to
another” is firmly embedded in our jurisprudence.…
authority for the proposition that most people have
Indeed…the right is so important that it is “assertable
a reasonable expectation of retaining their anonym- against private interference as well as governmental
ity, even in a public place.217 Besides the Fourth action…a virtually unconditional personal right, guaran-
Amendment, one argument is that a right to teed by the Constitution to us all.”225
anonymity is protected by the rights of freedom of
speech and association guaranteed by the First Nevertheless, although video surveillance may
Amendment and by a constitutional right to travel. inhibit one’s right to travel, the courts appear to be
In Watchtower Bible & Tract Soc’y of N.Y. v. Strat- unlikely to hold that video surveillance of members
ton,218 based on the First Amendment, the Supreme of the public violates the Constitution.226 The use
Court invalidated an ordinance that required a of video surveillance by transit authorities also
person to obtain a permit, which contained the appears to satisfy the Supreme Court’s proportion-
person’s name, prior to engaging in door-to-door ality test, a test that balances an intrusion into one’s
advocacy of a political cause. The Court stated, Fourth Amendment rights against a legitimate
As our cases involving distribution of unsigned handbills government interest for the intrusion.227 Dispropor-
demonstrate, there are a significant number of persons who tionate targeting of individuals, on the other hand,
support causes anonymously. “The decision to favor anonym- could be held to be unconstitutional.228
ity may be motivated by fear of economic or official retalia- To conclude part IV, the courts have not held that
tion, by concern about social ostracism, or merely by a desire individuals have a reasonable expectation of privacy,
to preserve as much of one’s privacy as possible.”…The
requirement that a canvasser must be identified in a permit “at least in that information which they fail to conceal,”
application filed in the mayor’s office and available for public when they are in the public realm “in streets, parks,
inspection necessarily results in a surrender of that anonym- and highways….”229 Present case law strongly suggests
ity…. [T]he Court of Appeals erred in concluding that the that transit agencies’ use of video surveillance, such as
ordinance does not implicate anonymity interests.219 on buses or trains or in stations or on platforms, does
not violate the Constitution. Moreover, transit agencies
In McIntyre v. Ohio Elections Commission,220
provide customers and other members of the public
Justice Stevens likewise stated that “[t]he decision
with notice that they are subject to video surveillance.
214
Video Surveillance and the Constitution of Public
Space, supra note 108, at 1362 & n.73 (citing Vernonia
221
Id. at 341–42, 115 S. Ct. at 1516, 131 L. Ed. 2d at 436.
Sch. Dist. 47J v. Acton, 515 U.S. 646, 655 (1995) and 222
Slobogin, supra note 23, at 253.
Skinner v. Ry. Labor Executives’ Ass’n, 489 U.S. 602, 223
Id. at 258.
627 (1988)). 224
526 U.S. at 489, 119 S. Ct. at 1518, 143 L. Ed. 2d at
215
Id. at 1451 (footnotes omitted). 689 (1999).
216
Slobogin, supra note 23, at 215. 225
Id., 526 U.S. at 498, 119 S. Ct. at 1524, 143 L. Ed. 2d
217
See, e.g., Video Surveillance and the Constitution of at 701 (citations omitted).
Public Space, supra note 108, at 1364. See also, Guide- 226
Slobogin, supra note 23, at 269.
lines for Public Video Surveillance, supra note 6, at 8 227
Video Surveillance and the Constitution of Public
(stating that “[m]ost people expect to remain anonymous Space, supra note 108, at 1455.
in many ‘public’ contexts”) (footnote omitted). 228
Slobogin, supra note 23, at 299, (discussing Whren
218
536 U.S. 150, 122 S. Ct. 2080, 153 L. Ed. 2d 205 (2002). v. United States, 517 U.S. 806, 116 S. Ct. 1769, 135 L. Ed.
219
Id. at 166, 122 S. Ct. at 2089–90, 153 L. Ed. 2d at 2d 89 (1966)).
219–20. 229
Video Surveillance and the Constitution of Public
220
514 U.S. 334, 115 S. Ct. 1511, 131 L. Ed. 2d 426 (1995). Space, supra note 108, at 1357 (footnote omitted).

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Legal Implications of Video Surveillance on Transit Systems

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Finally, no cases were located for this digest holding are those of enjoying and defending life and liberty,
that a transit agency’s deployment of a public video acquiring, possessing and protecting property, and
surveillance system violates the Constitution. pursuing and obtaining safety and happiness.”241
Other state constitutional provisions mirror
V. THE RIGHT TO PRIVACY UNDER STATE the United States Constitution’s Fourth Amend-
CONSTITUTIONS ment’s protection against unreasonable searches
and seizures.242
A. State Constitutions Recognizing a Right Additionally, in some states the courts have recog-
to Privacy nized a constitutional right to privacy. In 2002, the
At least ten state constitutions include a provi- Supreme Court of Arkansas held that “Arkansas has
sion for the protection of an individual’s right to a rich and compelling tradition of protecting indi-
privacy,230 such as the constitutions of Alaska,231 vidual privacy” and that a “fundamental right to
Arizona,232 Florida,233 Montana,234 and Washington.235 privacy [is] guaranteed to the citizens of Arkan-
However, it does not appear that the state constitu- sas.”243 Georgia’s Supreme Court has held that there
tional provisions would apply necessarily to the use is an implicit right to privacy in Georgia’s constitu-
of video surveillance in public places. tion, stating “that Georgia citizens have a liberty of
Alaska’s constitution states that “[t]he right of privacy guaranteed by the Georgia constitutional
the people to privacy is recognized and shall not provision which declares that no person shall be
be infringed.”236 In Arizona, “[n]o person shall be deprived of liberty except by due process of law.”244
disturbed in his private affairs…without authority The Kentucky Supreme Court likewise has stated
of law.”237 In California, individuals’ “inalienable that “[t]he right of privacy has been recognized as an
rights”238 are secured, including their pursuit of integral part of the guarantee of liberty in our 1891
“safety, happiness, and privacy.”239 Florida’s constitu- Kentucky Constitution since its inception.”245
tion states, “The right of the people to be secure in Some state constitutions provide, or some courts
their persons, houses, papers and effects against have held, that an individual’s right to privacy must
unreasonable searches and seizures, and against the be balanced against a compelling state interest in
unreasonable interception of private communica- disclosure. A California appellate court has held that,
tions by any means, shall not be violated.”240 In Iowa, even though a patient has a constitutionally protected
“All men and women are, by nature, free and equal, interest in his or her medical file, a “disclosure may be
and have certain inalienable rights—among which appropriate in narrowly limited circumstances to
serve a compelling interest.”246 Hawaii’s constitution
230
Douma & Deckenbach, supra note 122, at 307. See
also, National Conference of State Legislatures, Privacy
provides that “[t]he right of the people to privacy is
Protections in State Constitutions (citing Alaska Const. recognized and shall not be infringed without the
art. I, § 22; Ariz. Const. art. II, § 8; Cal. Const. art. I, § 1; showing of a compelling state interest.”247 Montana’s
Fla. Const. art. I, § 12; Haw. Const. art. I, § 6; Ill. Const. constitution similarly provides that “[t]he right of
art. I, § 6; La. Const. art. I, § 5; Mont. Const. art. II, § 10; individual privacy is essential to the well-being of a
S.C. Const. art. I, § 10; and Wash. Const. art. I, § 7),
http://www.ncsl.org/research/telecommunications-and-
free society and shall not be infringed without the
information-technology/privacy-protections-in-state- showing of a compelling state interest.”248
constitutions.aspx (last accessed Aug. 22, 2017). 241
Iowa Const. art. I, § 1 (2017).
231
Alaska Const. art. I, § 22 (2017). 242
See Haw. Const. art. I, § 7 (2017); Ill. Const. art. I,
232
Ariz. Const. art. II, § 8 (2017) (“No person shall be § 6 (2017); La. Const. art. I, § 5 (2017); and S.C. Const. art.
disturbed in his private affairs, or his home invaded, I, § 10 (2017).
without authority of law.”). 243
Jegley v. Picado, 349 Ark. 600, 632, 80 S.W.3d 332,
233
Fla. Const. art. I, § 23 (2017) (“Every natural person 350 (2002).
has the right to be let alone and free from governmental 244
Powell v. State, 270 Ga. 327, 329, 510 S.E.2d 18, 21
intrusion into the person’s private life....”).
(1998) (citing Pavesich v. New England Life Ins. Co., 122 Ga.
234
Mont. Const. art. II, § 10 (2017) (“The right of indi- 190, 197, 50 S.E. 68, 71 (1905) (internal citation omitted)).
vidual privacy is essential to the well-being of a free soci- 245
Commonwealth v. Wasson, 842 S.W.2d 487, 495
ety and shall not be infringed without the showing of a
(Ky. 1993).
compelling state interest.”). 246
Cutter v. Brownbridge, 183 Cal. App. 3d 836, 842, 228
235
Wash. Const. art. I, § 7 (2017) (“No person shall be
Cal. Rptr. 545, 549–50 (1986). However, when there has
disturbed in his private affairs, or his home invaded, with-
been a deliberate disclosure of one’s personal information,
out authority of law.”).
the disclosure “leaves no room for the careful balancing
236
Alaska Const. art. I, § 22 (2017). that must take place prior to possible infringement of a con-
237
Ariz. Const. art. II, § 8 (2017). stitutional right.” Id., 183 Cal. App. 3d at 847, 228 Cal. Rptr.
238
Cal. Const. art. I, § 1 (2017). at 553 (citations omitted).
239
Id. 247
Haw. Const. art. I, § 6 (2017).
240
Fla. Const. art. I, § 12 (2017). 248
Mont. Const. art. II, § 10 (2017).

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Legal Implications of Video Surveillance on Transit Systems

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B. States Recognizing an Implied Cause When a legislative provision protects a class of persons by
of Action for a Violation of a State proscribing or requiring certain conduct but does not provide
a civil remedy for the violation, the court may, if it deter-
Constitutional Provision mines that the remedy is appropriate in furtherance of the
In Bivens v. Six Unknown Named Agents of the purpose of the legislation and needed to assure the effective-
Federal Bureau of Narcotics,249 the United States ness of the provision, accord to an injured member of the
class a right of action, using a suitable existing tort action or
Supreme Court held that there is an implied right of a new cause of action analogous to an existing tort action.255
action for a violation of the United States Constitu-
tion’s prohibition on unreasonable searches and In Cutter v. Brownbridge,256 a psychotherapist
seizures. Some state courts have held that an “an revealed information about his patient to the
individual may bring a cause of action for monetary patient’s wife while they were in the midst of a
damages for violations of state constitutional provi- divorce that resulted in the plaintiff’s loss of his visi-
sions,”250 whereas other states’ high courts have not tation rights. A California appellate court held that
done so.251 Some state courts that have recognized an the privacy provision in the California Constitution
implied cause of action under their state constitution “is self-executing[] and needs no legislation to
did not rely solely on the Supreme Court’s reasoning create ‘a legal and enforceable right of privacy for
in Bivens252 but relied also on the common law253 or every Californian.’”257 Violation of a privacy right is
§ 874A of the Restatement (Second) of Torts:254 permissible only “when the need for disclosure
outweighs [the plaintiff’s] interest in privacy.”258
249
403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971)
(holding that the plaintiff was entitled to redress for his Because the plaintiff’s privacy interests outweighed
injuries caused by federal agents’ violation of his Fourth the need for disclosure,259 the court reversed the
Amendment rights), on remand, 456 F.2d 1339 (2d Cir. lower court’s dismissal of the plaintiff’s complaint.260
N.Y. 1972) (holding that federal agents were not immune In Moresi v. State,261 the Louisiana Supreme
from actions for damages based on allegations of constitu- Court recognized an implied right of action for a
tional violations but that defenses of good faith and rea-
sonable belief were available). violation of Article I, § 5 of the 1974 Louisiana
250
Sharon N. Humble, Annotation, Implied cause of action Constitution.262 Article I, § 5 states, “Every person
for damages for violation of provisions of state constitutions, shall be secure in his person, property, communica-
75 A.L.R. 5th 619, 633 (2000), (citing Porten v. University of tions, houses, papers, and effects against unreason-
San Francisco, 64 Cal. App. 3d 825, 134 Cal. Rptr. 839 (1976) able searches, seizures, or invasions of privacy” and
(recognizing an implied cause of action for violations of the “Any person adversely affected by a search or seizure
right to privacy) and Fenton v. Groveland Community Ser-
vices Dist., 135 Cal. App. 3d 797, 185 Cal. Rptr. 758 (1982) conducted in violation of this Section shall have
(recognizing an implied cause of action for a violation of the standing to raise its illegality in the appropriate
right to vote); Phillips v. Youth Development Program, Inc., court.”263 However, as had the Supreme Court in
390 Mass. 652, 459 N.E.2d 452 (1983) (recognizing an implied Bivens, and later the New York Court of Appeals in
cause of action for violation of the right to due process), id. at Brown, discussed below, the Louisiana Supreme
635; Johnson v. Wayne Co., 213 Mich. App. 143, 540 N.W.2d
66 (1995) (recognizing an implied cause of action for viola- Court recognized a qualified immunity defense for
tions of the rights of equal protection and due process and acting in good faith.264 The police officers were acting
right to be free from cruel and unusual punishment) and in good faith because their “investigatory stops
Woodruff v. Board of Trustees of Cabell Huntington Hosp., [were] based on reasonable, articulable suspicion
173 W. Va. 604, 319 S.E.2d 372 (1984) (recognizing an implied [that] do not violate state constitutional law
right of action for an alleged violation of the right to free
speech)), id. at 634, hereinafter referred to as “Humble.” 255
Restatement (Second) of Torts, § 874A (Am. Law
251
Wooley v. Madison County, Tennessee, 209 F. Supp. Inst. 1965).
2d 836 (W.D. Tenn. 2002). See Humble, supra note 250. 256
183 Cal. App. 3d 836, 228 Cal. Rptr. 545 (Cal. App.
252
Humble, supra note 250, at 632 (citing Porten v. Uni- 1986), overruled in part, Jacob B. v. County of Shasta, 40
versity of San Francisco, 64 Cal. App. 3d 825, 134 Cal. Cal. 4th 948, 56 Cal. Rptr. 3d 477, 154 P.3d 1003 (2007)
Rptr. 839 (1976); Lamartiniere v. Allstate Ins. Co., 597 (holding that the litigation privilege applies even to a
So.2d 1158 (La. App. 1992); and Bott v. DeLand, 922 P.2d constitutionally-based privacy cause of action).
732 (Utah 1996), id. at 634). 257
Id. at 842, 228 Cal. Rptr. at 549 (citation omitted).
253
Id. at 335–36 (citing Moody v. Hicks, 956 S.W.2d 398 258
Id. at 843, 228 Cal. Rptr. at 552.
(Mo. Ct. App. E. D. 1997); DiPino v. Davis, 354 Md. 18, 720 259
Id. at 848, 228 Cal. Rptr. at 553.
A.2d 354 (1999); and Brown v. Consolidated Rail Corp.,
223 N.J. Super. 467, 538 A.2d 1310 (N.J. App. 1988)).
260
Id. at 844, 228 Cal. Rptr. at 553.
254
Id. at 632 (citing Brown v. State, 89 N.Y.2d 172, 652
261
567 So.2d 1081 (La. 1990).
N.Y.S.2d 223, 674 N.E.2d 1129 (N.Y. 1996) and Dorwart v. 262
Id. at 1093.
Caraway, 2002 MT 240, 312 Mont. 1, 58 P.3d 128 (Mont. 263
Id. at 1091–92 (quoting La. Const. art. I, § 5 (1974)).
2002)). 264
Id. at 1094 (citing Butz v. Economou, 438 U.S. 478,
506–07, 98 S. Ct. 2894, 2911, 57 L. Ed. 2d 895, 916 (1977)).

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Legal Implications of Video Surveillance on Transit Systems

20

principles.”265 The officers were not liable for an In responding to the survey, nine transit agencies
intentional infliction of emotional distress, because (12.50%) reported that their agency had been
their actions were not intentional, and the plaintiff involved in an administrative proceeding or a legal
did not allege or prove any physical harm or genuine action resulting from the agency’s use of video
and serious mental distress.266 surveillance. Sixty-two agencies (86.11%) stated
The New York Court of Appeals held in Brown v. that they had not had any administrative or legal
State,267 a class action alleging that the actions of actions arising out the agency’s use of video surveil-
the police in questioning only non-white males were lance.276 For example, the Dallas Area Rapid Transit
unconstitutional, held that “a cause of action to (DART) stated that usually the surveillance issue
recover damages may be asserted against the State arises in pre-trial motions but that DART has
for a violation of the Equal Protection and Search prevailed in every instance to date. Although three
and Seizure Clauses of the Constitution.”268 Follow- other agencies described their claims experience,
ing the precedent set in Bivens, the court held that none of the reported claims was a claim for damages
there was an implied right of action: “implying a based on the agencies’ use of video surveillance.
damage remedy here is consistent with the purpose Finally, no cases were located for this digest
underlying the duties imposed by these provisions that involved a claim against a transit agency for
and is necessary and appropriate to ensure the full an alleged violation of a right to privacy under a
realization of the rights they state.”269 However, state constitution based on an agency’s use of
unlike in Bivens, an immunity defense was not video surveillance.
available because New York had waived immunity
for the acts of its officers and employees.270 VI. WHETHER THERE ARE FEDERAL
Although in Brown the New York Court of AND STATE STATUTES THAT APPLY TO
Appeals recognized an implied cause of action for a VIDEO SURVEILLANCE
violation of a right to privacy, in Augat v. State,271
the Supreme Court of New York, Appellate Division A. Evolution of Federal Statutory Privacy Rights
held that, because the plaintiffs had adequate With respect to federal statutes protecting indi-
common law tort remedies, their claims based on viduals’ right to privacy, the laws historically have
alleged violations of the rights to due process or been derived from general tort law, but government
freedom of association were not cognizable.272 The record-keeping on its citizens has resulted in
court distinguished the Brown case on the basis “a distinct subspecies of statutory law.”277 Some
that the plaintiff in Brown did not have an federal laws, such as the Privacy Act and FOIA,
adequate, alternative remedy under the common broadly control the “use and disclosure of federal
law as the plaintiffs had in Augat.273 government records about its citizens,”278 whereas
In Christie v. Borough of Folcroft,274 a federal other laws, such as the Drivers Privacy and Protec-
court in Pennsylvania stated that state courts have tion Act of 1994 (DPPA)279 or the Gramm–Leach–
allowed non-monetary relief but that no state case Bliley Act of 1999,280 govern narrow, specific issues
has upheld a claim for monetary damages under the that affect individuals. Although several federal laws
Pennsylvania Constitution.275 address the privacy rights of individuals, the protec-
tion of privacy has been left largely to the states.281
265
Id. at 1094.
Although no federal statutes were located for this
266
Id. at 1095–96.
digest authorizing or prohibiting transit agencies’
267
89 N.Y.2d 172, 652 N.Y.S.2d 223, 674 N.E.2d 1129
(1996). use of video surveillance, arguably the use of video
268
Id. at 188, 652 N.Y.S.2d at 232–33, 674 N.E.2d at surveillance by public transit authorities is rooted
1138–39. 276
See Appendix C, transit agencies’ responses to ques-
269
Id. at 189, 652 N.Y.S.2d at 233, 674 N.E.2d at 1139–40.
tion 23. One agency (1.39%) did not respond to the ques-
270
Id. at 195, 652 N.Y.S.2d at 237, 674 N.E.2d at 1143 tion.
(citing N.Y. Court of Claims Act § 9(2)). 277
McCarthy, supra note 124, at § 5.83.
271
244 A.D.2d 835, 666 N.Y.S.2d 249 (N.Y. App. 1997). 278
Id. at § 6.135.
272
Id. at 837, 666 N.Y.S.2d at 251–52. 279
Pub. L. No. 103-322, 108 Stat. 2099 (codified at 18
273
Id. at 837–38, 666 N.Y.S.2d at 251–52. Furthermore, U.S.C. §§ 2721–2725 (2017)).
the court in Augat did not address whether there was a 280
Pub. L. No. 106-102, § 501, 113 Stat. 1338, (codified
cause of action for the constitutional violations alleged by
at 15 U.S.C. § 6801 (2017)).
the plaintiffs because their notice of intention to file was
untimely. Id., 666 N.Y.S.2d at 251, 244 A.D. 2d at 836–37.
281
Katz, 389 U.S. at 350–51, 88 S. Ct. at 511, 19 L. Ed.
2d at 581 (footnote omitted).
274
No. 04-5944, No. 04-5972, 2005 U.S. Dist. LEXIS
21569, at *1 (E.D. Pa. 2005).
275
Id. at *37.

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Legal Implications of Video Surveillance on Transit Systems

21

in federal law. For example, the FTA observes that § 208 of the E-Government Act of 2002
requires agencies receiving urbanized area grant program “establishes the requirement for agencies to conduct
funds to spend 1% of the grant award on security improve- privacy impact assessments for electronic informa-
ments, including increased camera surveillance. Similarly, tion systems and collections.”290
United States Department of Transportation regulations
The Privacy Act governs government or
outline contents of security plans for certain rail systems. More-
over, video surveillance systems received considerable attention government-controlled corporations but not private
in the Transit Security Design Considerations developed by the entities.291 However, the Privacy Act applies to
FTA to aid transit agencies in developing security strategies.282 “certain federal contractors who operate Privacy Act
systems of records on behalf of federal agencies.”292
However, an agency may decide that an expenditure When disclosing records, no federal agency or its
for improvements in security is not necessary.283 contractors may disclose PII without the affected
individual’s written consent.293 If the Privacy Act
B. Privacy Act of 1974
and privacy regulations provide different standards,
The Privacy Act of 1974284 protects the privacy of then a federal agency must abide by whichever
records maintained by federal agencies on individu- provision allows for the least disclosure.294
als285 and regulates the agencies’ release of individu- Section 552g(1) of the Privacy Act states:
als’ information.286 The Act is a “reaction to the Whenever any agency . . . fails to maintain any record
perceived threat to personal privacy presented by concerning any individual with such accuracy, relevance,
computerized government records about its citizens” timeliness, and completeness as is necessary to assure fair-
and addresses problems “largely beyond the reach of ness…or fails to comply with any other provision of this
section, or any rule promulgated thereunder, in such a way
traditional tort law.”287
as to have an adverse effect on an individual, the individual
The Act requires each government agency to make may bring a civil action against the agency, and the district
certain information available to the public but courts of the United States shall have jurisdiction in the
provides further “to the extent required to prevent a matters under the provisions of this subsection.295
clearly unwarranted invasion of personal privacy, an
agency may delete identifying details when it makes There are four essential elements that must be
available or publishes an opinion, statement of policy, established when a plaintiff makes a claim under
interpretation, staff manual, instruction, or copies of the Privacy Act—
records referred to in subparagraph (D)….”288 (1) the information is covered by the Act as a “record”
contained in a “system of records”; (2) the agency “disclosed”
The United States Department of Transportation
the information; (3) the disclosure had an “adverse effect” on
(U.S. DOT) explains that the Privacy Act sets forth the plaintiff (an element which separates itself into two
“how the federal government should treat individu- components: (a) an adverse effect standing requirement and
als and their information and imposes duties (b) a causal nexus between the disclosure and the adverse
upon federal agencies regarding the collection, use, effect); and (4) the disclosure was “willful or intentional.”296
dissemination, and maintenance of personally
Although the Privacy Act provides that a person is
identifiable information (PII).”289 The U.S. DOT also
entitled to recover no less than $1,000,297 the Supreme
282
Charles A. Valente & William D. Nagel, “Privacy Court has held that a plaintiff must prove actual
Impact Assessment for the Regional Camera Project,” at damages to recover for a violation of the Privacy Act.298
15 & n.31 (citing 49 U.S.C. § 5307(c)(1)(j)(i)) (2015), http://
www.arjis.org/RegionalPolicies/Privacy%20Impact%20 290
Id.
Assessment.pdf (last accessed Aug. 22, 2017). See Dow
Chemical Co. v. United States, 476 U.S. 227, 233–34, 106 S.
291
John M. Eden, When Big Brother Privatizes: Com-
Ct. 1819, 1824, 90 L. Ed. 2d 226, 234–35 (1986) (holding mercial Surveillance, the Privacy Act of 1974, and the
that the Environmental Protection Agency did not need Future of RFID, 2005 Duke L. and Tech. Rev. 20, P4 & n. 16
explicit statutory authorization to employ methods of (2005) (citing 5 U.S.C. § 522(a)(1)).
observation available to the public).
292
65 Fed. Reg. 82,462, 82,482 (December 28, 2000).
283
49 U.S.C. § 5307(c)(1)(J)(ii) (2017).
293
Id.
284
See Pub. L. No. 93-579, 88 Stat. 1896, (codified at 5
294
Id.
U.S.C. § 552a (2017). 295
5 U.S.C. §§ 552(g)(1)(C)–(D) (2017) (emphasis supplied).
285
5 U.S.C. § 552a(b) (2017). See also, 5 U.S.C. § 552(d)(1) 296
Quinn v. Stone, 978 F.2d 126, 131 (3d Cir. 1992)
(2017); Douma & Deckenbach, supra note 122, at 306. (emphasis supplied).
286
5 U.S.C. §§ 552(a) and (b) (2017). 297
A. Michael Froomkin, Symposium: Security Breach
287
McCarthy, supra note 124, at § 5.85 p. 613. Notification Six Years Later: Government Data Breaches,
288
5 U.S.C. § 522(a)(2)(E) (2017). 24 Berkeley Tech. L.J. 1019, 1055, 1034 (2009) (citing 5
U.S.C. § 552(q)(4)).
289
U.S. Dep’t of Transp., Privacy Impact Assessment
(Update) National Registry of Certified Medical Examin-
298
Doe v. Chao, 540 U.S. 614, 616, 627, 124 S. Ct. 1204,
ers (National Registry), at 1 (Aug. 20, 2012), https://www. 1206, 1212, 157 L. Ed. 2d 1122, 1129, 1134 (2004) (claim
transportation.gov/sites/dot.dev/files/docs/FMCSA_PIA_ arising out of the government’s repeated disclosure of the
National_Registry_082012.pdf (last accessed Aug. 22, 2017). claimant’s Social Security number).

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Legal Implications of Video Surveillance on Transit Systems

22

It is not sufficient for a plaintiff to show that the govern- it is a misdemeanor for a person to use video surveil-
ment intentionally or willfully violated the Act.299 lance in a public place without posting a notice.305
Other than the Electronic Communications Privacy The San Francisco Bay Area Rapid Transit
Act of 1986 (ECPA)300 discussed below, no federal District stated that California provides for a consti-
statutes have been identified that are implicated by tutional right to privacy but that public areas are
government-owned or privately-owned transit agen- generally exempt.306 On one hand, California has
cies’ use of video surveillance.301 No cases were enacted legislation providing that a transit agency
located for this digest involving a claim under the operated by a city or a city and county, unless three
Privacy Act or other federal statute arising out of a statutory exceptions apply, must “only purchase and
federal agency’s use of video surveillance or the install equipment capable of storing recorded images
disclosure of data captured by video surveillance. for at least one year….”307 On the other hand, the
state’s Local Assistance for Rural and Small County
C. State Statutes Applicable to Video Law Enforcement title provides that funds allocated
Surveillance under the statute may not be used for any video
Although there are statutes in some states that may surveillance or monitoring of the public.308 In Vo v.
regulate public agencies’ use of video surveillance,302 in City of Garden Grove,309 a California appellate court
general, state statutes on the use of public cameras are held that a municipal ordinance requiring cyber-
“sparse.”303 Some statutes apply to government-owned cafes to install video surveillance cameras was not
and privately-owned transit agencies. Some transit an invasion of privacy interests.
agencies responding to the survey identified statutes The District of Columbia Code provides that the
or ordinances that apply to their agency’s use of video Metropolitan Police Department will “maintain a
surveillance of members of the public, employees, tran- right of access to all surveillance cameras and tech-
sit operators, facilities and/or equipment.304 In Arizona, nology” in the Video Interoperability for Public Safety
(VIPS) program, which is part of its Homeland Secu-
299
Id. at 627, 124 S. Ct. at 1212, 157 L. Ed. 2d at 1134. rity Program, “without limitation, except as stated
300
Pub. L. No. 99-508, 100 Stat. 1848. in applicable rules or regulations governing the
301
Garry, Douma, & Simon, supra note 123, at 97, 103. VIPS program.”310
302
D.C. Code § 5-133.19 (2017) (concerning regulations Although a Florida statute applies to surveillance
for use of video surveillance by Metropolitan Police
Department); Mich. Comp. Laws § 330.1724(9) (2017) used to commit an offense of video voyeurism,311 the
(video surveillance permitted in a psychiatric hospital for statute does not apply when law enforcement is
purposes of safety, security, and quality improvement); conducting surveillance for a law enforcement purpose,
Tex. Educ. Code § 29.022 (2017) (video surveillance of spe- to a security system when a written notice is posted
cial education settings); and Tex. Health & Safety Code conspicuously on the premises advising of the pres-
Ann. § 555.025 (2017) (use of surveillance in state sup-
ported living centers). ence of a video surveillance system, or when a video
303
Slobogin, supra note 23, at 272. surveillance device is installed so that it is “clearly and
304
See Appendix C, transit agencies’ responses to ques- immediately obvious.”312 The Hillsborough Transit
tion 22(a)–(d), including: Casco Bay Island Transit District Authority reported that its video surveillance data are
(identifying 33 C.F.R. parts 104 and 105); Centre Area confidential and exempt from Florida’s Public Records
Transportation Authority (stating that wiretapping stat- Act pursuant to Fla. Stat. §§ 119.071(3)(a) and 281.313
utes at the state level require notification of the public); CT
Transit (identifying Conn. Stat. § 53a-187); Department of 305
Guidelines for Public Video Surveillance, supra note
Transportation and Public Works identifying Florida 6, at 12, 40 n.544 (citing Ariz. Rev. Stat. § 13-1309 (2001)).
Statute, Chapter 119 (Public Officers, Employees, and 306
See Appendix C, San Francisco Bay Area Rapid
Records)); Greater Cleveland Regional Transit Authority Transit District’s response to question 22.
(identifying Ohio Rev. Code §§ 2933.51 and 2933.52); 307
Cal. Gov’t Code §§ 34090.8(a)(1)–(3) (2017).
Metropolitan Tulsa Transit Authority (identifying Okla-
homa Security of Communications Act, 13 Okla. Stat.
308
Cal. Gov’t Code § 30070(c) (2017).
§ 176.1, et seq.); Pace (Regional Transportation Authority 309
115 Cal. App. 4th 425, 9 Cal. Rptr. 3d 257 (Cal. App.
Suburban Bus Division) (identifying 720 ILCS 5/14-1, 2004).
et seq.); Rhode Island Public Transit Authority (identifying 310
D.C. Code § 7-2231.10(c) (2017).
R.I. Gen. Laws §§ 12-5.1-13 and 28-6.12-10); Sacramento 311
Fla. Stat. § 810.145(2) (2017).
Regional Transit District (identifying Cal. Gov’t Code 312
Fla. Stat. §§ 810.145(5)(a)–(c) (2017). Subsection (d)
§ 6250, et seq. and Cal. Pub. Util. Code § 99164); Salem
states that the Act does not apply to the “[d]issemination,
Area Mass Transit District (identifying Or. Rev. Stat.
distribution, or transfer of images subject to this section
§ 165.540); Santa Clara Valley Transportation Authority
by a provider of an electronic communication service … or
(identifying Cal. Penal Code § 630–38 and Cal. Gov’t Code
a provider of a remote computing service….” (internal
§§ 53160 to 53162); TriMet (identifying Or. Rev. Stat.
statutory citations omitted).
§§ 163.700 and 163.702); and VIA Metropolitan Transit
(identifying Tex. Penal Code § 16.02 and 18 U.S.C. § 119).
313
See Appendix C, Hillsborough Transit Authority’s
response to question 22.

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Legal Implications of Video Surveillance on Transit Systems

23

New Hampshire prohibits the state and its politi- whether any state statutes that apply to government-
cal subdivisions from using video surveillance on state collection of data on individuals apply to video
highways314 but permits surveillance when “[i]t is surveillance data. However, even when state infor-
undertaken for security and to facilitate law enforce- mation and data privacy laws are applicable, only
ment in the investigation of criminal activity at the some of the statutes authorize a private right of
state-owned park and ride facilities that provide regu- action for a violation of an individual’s privacy.320
larly scheduled public transit service….”315 California’s Information Practices Act of 1977
As for the state of Washington, Intercity Transit governs the collection, use, and disclosure of personal
advised that the use of video by the agency information held by state agencies; however, the
creates a public record as defined by RCW 42.56. These statute does not apply to city or county agencies.321
records must be preserved pursuant to RCW 40.14.070.… The Minnesota Government Data Privacy Act
Our system is configured so that DVRs hold approximately “regulates the collection, creation, storage, mainte-
200 hours of video, which equates to 10–14 days depending
nance, dissemination, and access to government data
on how much the vehicles are in service. If video is not
viewed/downloaded pursuant to an incident, investigation in government entities.”322 The Minnesota Govern-
or public records request it is written over.316 ment Data Privacy Act applies to all “data in which
any individual is or can be identified as the subject
D. Whether State Data-Collection Statutes of that data”323 and to all data collected by the
Apply to Video Surveillance Data government “regardless of its physical form, storage
media, or conditions of use.”324
Although some states ban or limit the use of
State law in Minnesota also applies to law enforce-
certain types of technology or devices,317 there seem
ment agencies that use a portable recording system
to be no state laws “that specifically address privacy
in investigations or to respond to emergencies, inci-
rights and transportation technologies.”318 Statutes
dents, and requests for service.325 A portable record-
in some states applicable to data collection on indi-
ing system refers to a device worn by a peace officer
viduals by state and/or local agencies may be a source
that is capable of recording both audio and video.326
of privacy law applicable to data captured by video
Minnesota’s statute requires that a law enforcement
surveillance.319 Transit agencies will want to consider
agency notify the Bureau of Criminal Apprehension
314
N.H. Rev. Stat. Ann. § 236:130(II) (2017). within ten days of the agency’s acquisition of new
315
N.H. Rev. Stat. Ann. § 236:130(III)(g) (2017). surveillance technology that enlarges the surveil-
316
See Appendix C, Intercity Transit’s response to lance capability of a portable recording device.327
question 22. In Ohio, the privacy statutes that govern personal
317
For a complete analysis of state personal information information systems require every state or local
and data breach statutes, see Larry W. Thomas, Liability of
Transportation Entity for the Unintentional Release of
agency that maintains a personal information
Secure Data or the Intentional Release of Monitoring system to take steps and implement procedures to
Data on Movements or Activities of the Public, National monitor the accuracy of data and protect personal
Cooperative Highway Research Program Legal Research information in the system.328 The term personal
Digest No. 71, Transportation Research Board 2016), p. 33. information is defined as
[hereinafter LRD 71] https://www.nap.edu/read/23586/
chapter/1 (last accessed Aug. 22, 2017). any information that describes anything about a person, or
that indicates actions done by or to a person, or that indi-
318
Douma and Deckenbach, supra note 122, at 309. cates that a person possesses certain personal characteris-
319
LRD 71, supra note 317, at 28. See California’s Infor- tics, and that contains, and can be retrieved from a system
mation Practices Act of 1977 (IPA), Cal. Civ. Code §§ 1798, - by[] a name, identifying number, symbol, or other identifier
1798.78 (2017); Illinois’s Personal Information Protection assigned to a person.329
Act, 815 ILCS §§ 530/1 – 530/50 (2017); Louisiana’s Data-
base Security Breach Notification Law, La. Rev. Stat. 320
Douma & Deckenbach, supra note 122, at 308–09.
§§ 51:3071 – 51:3075 (2017); Maine’s Notice of Risk to Per- 321
Cal. Civ. Code § 1798.14 (2017).
sonal Data Act, Me. Rev. Stat. tit. 10, §§ 1346 – 1350-B 322
Minn. Stat. § 13.01, subdiv. 3 (2017).
(2017); Michigan’s Identity Theft Protection Act, Mich. Comp.
Laws §§ 445.63 – 445.7d (2017); Minnesota’s Government
323
Minn. Stat. § 13.01, subdiv. 5 (2017).
Data Practices Act, Minn. Stat. §§ 13.01 – 13.99 (2017); 324
Minn. Stat. § 13.01, subdiv. 7 (2017).
Nevada’s Security of Personal Information, Nev. Rev. Stat. 325
Minn. Stat. § 13.824(a) (2017).
§§ 603A.030 – 603A.92 (2017); Oklahoma’s Security Breach 326
Minn. Stat. § 13.825(b)(1) and (2) (2017).
Notification Act, Okla. Stat. §§ 24-161 – 24-166 (2017); Penn- 327
Minn. Stat. § 13.825, subdiv. 10 (2017).
sylvania’s Breach of Personal Information Notification Act,
73 Pa. Cons. Stat. §§ 2301 - 2329 (2017); Rhode Island’s Iden-
328
Ohio Rev. Code §§ 1347.0 and 1347.05(F) and (G)
tity Theft Protection Act of 2005, R.I. Gen. Laws §§ 11-49.2-1 (2017). The terms state agency and local agency are
– 11-49.2-7 (2017); Tennessee’s Identity Theft Deterrence Act defined in Ohio Rev. Code § 1347.01 (2017).
of 1999, Tenn. Code §§ 47-18-2101 – 47-18-2110 (2017); and 329
Ohio Rev. Code § 1347.01(E) (2017).
Virginia’s Government Data Collection and Dissemination
Practices Act, Va. Code Ann. §§ 2.2-3800 – 2.2-3809 (2017).

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Legal Implications of Video Surveillance on Transit Systems

24

Some of the state privacy laws authorize a private The statutes typically provide that encryption is a
right of action for a violation of the statute.330 defense to a claim for a data-breach for any missing,
Although the state statutes generally do not distin- lost, or stolen data.333
guish between intentional and non-intentional A person injured by a data-breach has a private
violations, a few statutes limit a cause of action to an right of action in at least thirteen states and the
intentional, willful, or knowing violation of privacy.
§ 1347(5) (2017) (defining the term person to include agen-
In addition, as of June 2017, all states except cies of state government); see also, Maine Rev. Stat. 10
Alabama and South Dakota, have laws requiring § 1347(3) (2017) (defining the term information broker as
that notice be given to the public if there is a security being inapplicable to a governmental agency whose records
breach involving data having personal information.331 are maintained primarily for traffic safety, law enforcement
Although the breach notification statutes apply to or licensing purposes); Mass. Gen. Laws, ch. 93H, § 1(a)
(2017) (defining the term agency to include “any agency, …
businesses and commercial entities as defined in authority of the commonwealth, or any of its branches, or of
each statute, in at least twenty-three states, the any political subdivision thereof”); Mich. Comp. Laws
statutes also apply to government agencies.332 § 445.63 Sec. 3(a) (2017) (defining the term agency to
include “a department, board, commission, office, agency,
330
But see, Colo. Rev. Stat. § 24-72-501-02(3) (2017); authority, or other unit of state government of this state”);
Fla. Stat. § 627.4091(3) (2017); and S.C. Code Ann. § 30-2- Mont. Code. § 2-6-1501(6)(a) (2017) (defining a state agency
300(3) (2017) (stating that “an affected individual may to include “an agency, authority, … or other instrumentality
petition the court for an order directing compliance with of the legislative or executive branch of state government,”
this section, but liability may not accrue”). as well as “an employee of a state agency acting within the
331
See National Conference of State Legislatures, Secu- course and scope of employment”); Nev. Rev. Stat.
rity Breach Notification Laws (2017), http://www.ncsl.org/ § 603A.030 (2017) (defining the term data collector to
research/telecommunications-and-information-technology/ include “any governmental agency … that … handles, col-
security-breach-notification-laws.aspx (last accessed Aug. lects, disseminates or otherwise deals with nonpublic per-
22, 2017). See also, Mintz Levin, State Data Security Breach sonal information”); N.J. Stat. Ann. § 56:8-161 (2017) (defin-
Notification Laws (Sept. 1, 2016), hereinafter referred to as ing a public entity to include the state, county, public agency,
“State Breach Notification Laws,” http://www.mintz.com/ political subdivision, or other state public body); Ohio Rev.
newsletter/2007/PrivSec-DataBreachLaws-02-07/state_ Code §§ 1347.01(A) and (B) (2017) (defining state agency
data_breach_matrix.pdf (last accessed Aug. 22, 2017) and local agency, respectively); see also, Ohio Rev. Code.
(analyzing state laws by data and consumers protected; the § 1347.01(D) (2017) (defining the term maintain to mean
statutes’ definition of a breach; covered entities; notice pro- state or local ownership of, control over, responsibility for, or
cedures, timing, and exemptions; whether encryption is a accountability for data systems and §§ 1347.12(A)(1) and
safe harbor; preemption; penalties; and whether the stat- (B)(1) (2017) (defining agency of a political subdivision);
utes create a private right of action). 24 Okla. Stat. § 162(2) (2017) (stating that the term entity
332
Alaska. Stat. §§ 45.48.090(2)(B) and (3) (2017) (stat- includes “governments, governmental subdivisions, agen-
ing that the term covered person includes a government cies, or instrumentalities, or any other legal entity….”);
agency, meaning “a state or local governmental agency, 73 Pa. Const. Stat. § 2302 (2017) (defining the term entity
except for an agency of the judicial branch”); see also, to include a state agency or a political subdivision of the
Alaska. Stat. § 45.48.090(4) (2017) (defining the term infor- Commonwealth); S.C. Code §§ 37-1-301(18) and (20) 39-1-90
mation collector to mean a “covered person who owns or (2017) (statute applying also to a “governmental subdivi-
licenses personal information in any form” on a state resi- sion”); Tenn. Code § 47-18-2102(9) (2017) (defining the term
dent); Cal. Civ. Code § 1798.14 (2017) (directing an agency person to include a “governmental agency … and any other
to maintain only relevant and necessary personal informa- legal or commercial entity however organized….”); Vt. Stat.
tion in its records); Ga. Code. § 10-1-911(2) (2017) (defining tit. 9, ch. 62 § 2430(3) (2017) (defining the term data collec-
the term “data collector” to include “any state or local tor to include the state, state agencies, and political subdivi-
agency or subdivision thereof ... or other government entity” sions of the state); Va. Code § 18.2-186.6 (2017) (defining
but excepting agency records maintained primarily for traf- the term entity to include governments, governmental sub-
fic safety, law enforcement, or licensing purposes); Haw. divisions, agencies, or instrumentalities; Wash. Rev. Code
Rev. Stat. § 487 N-1 (2017) (“Government agency” means § 42.56.590(b) (2017) (stating that the term agency has the
any department, division, board, commission, public corpo- same meaning as in § 42.56.010); W. Va. Code § 46A-2A-101
ration, or other agency or instrumentality of the state or (2017) (defining the term entity to include governments,
any county); Idaho Code. § 28-51-104(1) (2017) (defining the governmental subdivisions, agencies, or instrumentalities);
term agency to mean any public agency as defined in Idaho Wis. Stat. § 134.98(1)(a)(2) (2017) (defining the term entity
Code § 74-101); 815 ILCS § 530/5 (2017) (stating that the to include the state and any office, department, indepen-
term data collector includes government agencies); Ind. dent agency, or state government body, as well as a city,
Code § 4-1-11-4 (2017) (defining the term state agency as village, town, or county); V.I. Code, 14 V.I. Code. Ann.
set forth in Indiana Code § 4-1-10-2); see also, Ind. Code § 2208(b) (2017) (applicable to any agency maintaining
§ 4-1-11-5(a) (2017) (requiring state agencies to disclose computerized data with personal information).
security breaches); Kansas Stat. § 50-7a01(f) (2017) (defining 333
Jill Joerling, Note: Data Breach Notification Laws:
term person to include a government or governmental subdi- An Argument for a Comprehensive Federal Law to Protect
vision or agency or other entity); Maine Rev. Stat. tit. 10 Consumer Data, 32 Wash. U. J.L. & Pol’y 467, 471 (2010),
hereinafter referred to as “Joerling.”

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Legal Implications of Video Surveillance on Transit Systems

25

District of Columbia.334 In other states, there appears Although the scope of some of the foregoing stat-
to be no provision for a private right of action for a utes is sufficiently broad to cover video surveillance
data-breach.335 In some states, no action is permitted data collected by a government agency, no cases were
against government agencies.336 At least four states located for this digest in which a court has applied a
exempt government agencies from “enforcement state statute on the collection of data on individuals
proceedings.”337 Some states’ statutes provide for the to a video surveillance system or its data.
imposition of a civil penalty for a violation of a state
statute protecting personal information and/or a VII. REGULATION OF ANY AUDIO PORTION
violation of a requirement that an agency give notice OF VIDEO SURVEILLANCE
of a breach of the security of personal information.338
A. Federal Wiretap Act
334
Alaska (but not against government agencies),
California, Delaware (treble damages and reasonable The ECPA amended the federal Wiretap Act
attorney’s fees), Louisiana (actual damages), Maryland, so that it applies to the interception of oral and
Massachusetts (in certain situations), Minnesota, New electronic communications339 and created the SCA,
Hampshire, North Carolina, Rhode Island, South Carolina, discussed in part B, to cover unauthorized access to
Virginia, Washington, and the District of Columbia. See stored communications and records.340
State Breach Notification Laws, supra note 331. See
Joerling, supra note 333, at 479 N 63 (citing California The federal Wiretap Act341 proscribes the inter-
Security Breach Information Act, Cal. Civ. Code § 1798.84 ception of electronic communications, as well as wire
(2009); D.C. Code Ann. § 28-3853(a) (2009); N.H. Rev. Stat. and oral communications. The Act applies, inter alia,
Ann. § 359-C:21(I) (2009); N.C. Gen. Stat. Ann. § 75-65 to any person who
(2007); Or. Rev. Stat. Ann. § 646A.624 (2009); S.C. Code
(a) intentionally intercepts, endeavors to intercept, or
Ann. § 37-20-170 (2008); and Tenn. Code Ann. § 47-18-
procures any other person to intercept or endeavor to inter-
2107(h) (2009)).
cept, any wire, oral, or electronic communication;
335
See Ga. Code §§ 10-1-910–10-1-915 (2017); 815 ILCS
§ 530/20 (2017) (no specific penalty found that applies to (b) intentionally uses, endeavors to use, or procures any
government agencies but a violation constitutes an unlaw- other person to use or endeavor to use any electronic,
ful practice under the Consumer Fraud and Deceptive mechanical, or other device to intercept any oral communi-
Business Practices Act); Ind. Code § 4-1-11-2, et seq. (2017) cation when—
(no provision located that permitted a civil action or
(i) such device is affixed to, or otherwise transmits a
imposed a civil penalty for a violation); N.J. Stat. Ann.
signal through, a wire, cable, or other like connection
§ 56:8-166 (2017) (although stating that it is “unlawful …
to willfully, knowingly or recklessly violate sections 10 used in wire communication….342
through 13 of this amendatory and supplementary act,” no
provision located authorizing a cause of action or imposing The Wiretap Act applies to the interception of the
a specific civil penalty). audio portion of video surveillance because the
336
See Haw. Rev. Stat. § 487N-3(a) (2017); Maine Rev. monitoring is an interception of an oral communica-
Stat. § 1349(2)(A) (2017) (provisions on enforcement and tion.343 The Act does not apply to video-only surveil-
for imposition of civil penalties for violations of Maine’s lance because there is no interception of an oral,
statute on Notice of Risk to Personal Data not applicable
to the state). wire, or electronic communication.344 A warrant is
337
Joerling, supra note 333, at 476 (citing Haw. Rev. required for “a continuous video surveillance device
Stat. Ann. § 487N-2 (2009); Fla. Stat. Ann. § 817.5681 [that] can intercept sound.”345
(2006); Me. Rev. Stat. Ann. tit. 10, § 1349 (2008); and Tenn.
Code Ann. § 47-18-2107 (2009)).
339
United States v. Steiger, 318 F.3d 1039, 1046 (11th
Cir. 2003), cert. denied, 538 U.S. 1051, 123 S. Ct. 2120,
338
Alaska. Stat. § 45.48.080(a) (2017) (stating that an 155 L. Ed. 2d 1095 (2003).
information collector that is a governmental agency is
liable to the state for a civil penalty of up to $500 for each
340
Id. at 1047 (citing 18 U.S.C. § 2701(a)).
state resident who was not notified under AS 45.48.010 -
341
18 U.S.C. §§ 2510–2522 (2017).
45.48.090 but total civil penalty may not exceed $50,000); 342
18 U.S.C. §§ 2511(1)(a)–(b)(1) (2017).
Mich. Comp. Laws § 445.72(14) (2017) (applicable to 343
United States v. Koyomejian, 970 F.2d 536 (9th
§ 445.72’s security breach requirements and providing 1992), cert. denied, 506 U.S. 10005, 113 S. Ct. 617, 121 L.
that “[t]he aggregate liability of a person for civil fines Ed. 2d 550, (1992), app. den., 2005 U.S. App. Lexis 6396, at
under subsection (13) for multiple violations of subsection *1 (9th Cir. 2005).
(13) that arise from the same security breach shall not 344
Steven Hymowitz & David Bendana, Privacy Limi-
exceed $750,000.00). See Mich. Comp. Laws § 445.72(15) tations for Electronic Surveillance and Genetic Testing in
(2017) (stating that “[s]ubsections (12) and (13) do not the Workplace, at 11, American Bar Association (1996),
affect the availability of any civil remedy for a violation of http://apps.americanbar.org/labor/lel-aba-annual/
state or federal law”); R.I. Gen. Laws § 11-49.2-6(a) (2017) papers/1999/annual07.pdf (last accessed Aug. 22, 2017).
(stating that a breach of the state’s Identity Theft Protec-
tion Act “is a civil violation for which a penalty of not more
345
Scott Sher, Continuous Video Surveillance and its
than a hundred dollars ($100) per occurrence and not Legal Consequences, PLRI Working Papers Series, at 3
more than twenty-five thousand dollars ($25,000) may be (1996), http://gov.uchastings.edu/public-law/docs/plri/video.
adjudged against a defendant”). pdf (last accessed Aug. 22, 2017).

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Legal Implications of Video Surveillance on Transit Systems

26

Because federal law pre-empts the field of wire- violating the Act. Section 2520(a) provides, “Any
taps, any state law regulating the interception of person whose wire, oral, or electronic communica-
wire communications must provide safeguards at tion is intercepted, disclosed, or intentionally used
least as stringent as those in the federal statute.346 in violation of this chapter [18 U.S.C. §§ 2510 et seq.]
The proscription of the interception of oral commu- may in a civil action recover from the person or
nication by using a device transmitting radio entity, other than the United States, which engaged
communications applies both to interstate and in that violation such relief as may be appropriate.”
intrastate communications without the necessity of Thus, government agencies, other than the United
showing an effect on interstate commerce.347 States, including municipalities, may be held liable
In Christie v. Borough of Folcroft,348 employees under § 2520.354 Section 2520 authorizes a plaintiff to
of the police department alleged that they were seek preliminary and other equitable or declaratory
subjected to audio and video surveillance in their relief and to recover damages, including punitive
workplace in violation, inter alia, of the Federal damages in appropriate cases, reasonable attorney’s
Wiretap Act and the Pennsylvania Wiretap Act.349 In fees, and other reasonable litigation costs.355
denying the defendants’ motions to dismiss the In Garza v. Bexar Metropolitan Water District,356
Wiretap Act claims, the court held that both the during Garza’s final four months of employment
federal and state Acts allow claims by people whose with Bexar Metropolitan Water District, two of the
communications have been intercepted but that individual defendants, Olivares and Ruiz, monitored
“[e]vidence of actual interception, and not mere and recorded nearly 100 of Garza’s telephone conver-
evidence of the installation of devices capable of sations.357 Garza sued the defendants for damages
interception, is required.”350 and injunctive relief for alleged violations of the
In Maryland v. Washington Metropolitan Area federal Wiretap Act and the Texas Wiretap Act.358 In
Transit Authority,351 the plaintiffs, pro se, current or ruling on the defendants’ motion to dismiss, a federal
former employees of MV Transportation, Inc. (MV district court in Texas held that government entities
Transportation), a contractor for the Washington other than the United States may be held liable for
Metropolitan Area Transit Authority (WMATA), damages.359 The federal Wiretap Act allows certain
alleged that MV Transportation regularly moni- good faith defenses under § 2518(7) or a “good faith
tored and recorded their conversations without their determination” under § 2511(3); however, the plain-
consent in violation of federal and state wiretapping tiff had alleged sufficient facts to overcome the
laws. A federal court in Maryland held that WMATA, defendants’ “qualified immunity arguments at this
as an instrumentality of three states, was not subject juncture.”360 As for the Texas Wiretap Act, it also
to the Maryland Wiretapping and Electronic Surveil- defines a person who may be sued under the Act to
lance Act. Because WMATA and MV Transportation include a government or a governmental subdivi-
were subject to federal wiretapping laws,352 the sion or agency.361
plaintiffs could sue all defendants under 18 U.S.C.
§ 2520, as well as sue MV Transportation and the B. Stored Communications Act
individual defendants under Maryland Code Cts. & The SCA covers “the content of emails, private
Jud. Proc. § 10-410. Although the court held that the Facebook messages, YouTube videos, and so-called
plaintiffs’ allegations lacked sufficient specificity to metadata, or non-content information, connected to
state a claim under the wiretap laws, the court our Internet transactions.”362 Section 2701 of the
granted them leave to amend their complaint.353 SCA prohibits the intentional accessing of electronic
Section 2520 of the federal Wiretap Act autho- data without authorization or in excess of one’s
rizes a civil action against a person or entity 354
Adams v. City of Battle Creek, 250 F.3d 980 (6th Cir.
346
State v. Aurilio, 366 So.2d 71 (Fla. 4th DCA 1978), 2001).
cert. denied, 376 So.2d 76 (Fla. 1979). 355
18 U.S.C. §§ 2520(b)(1)–(3) (2017).
347
United States v. Anaya, 779 F.2d 532 (9th Cir. 1985). 356
639 F. Supp. 2d 770 (W.D. Tex. 2009).
348
No. 04-5972, 2005 U.S. Dist. LEXIS 21569, at *1, 357
Id. at 772.
(E.D. Pa. Sept. 27, 2005). 358
Tex. Civ. Prac. & Rem. Code Ann. ch 13.
349
18 Pa. Const. Stat. §§ 5701–5775 (2017). 359
Garza, 639 F. Supp. 2d at 773 (citations omitted).
350
Christie, 2005 U.S. Dist. LEXIS 21569, at *35. 360
Id. at 775.
351
No. 14-3397, 2015 U.S. Dist. LEXIS 91409, at *1 (D. 361
Id.
Md. July 13, 2015). See also, Sewell v. Wash. Metro. Area 362
Richard M. Thompson, II and Jared P. Cole, Congres-
Transit Auth., No. 16-2456, 2017 U.S. Dist. LEXIS 35800,
sional Research Service, Stored Communications Act:
at *1, 7 (D. Md. March 13, 2017).
Reform of the Electronic Communications Privacy Act
352
Maryland, 2015 U.S. Dist. LEXIS 91409, at *8. (ECPA), CRS Report, R44036, at 2, https://fas.org/sgp/crs/
353
Id., at *17, 18. misc/R44036.pdf (last accessed Aug. 22, 2017).

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Legal Implications of Video Surveillance on Transit Systems

27

authorization.363 Section 2701(a) applies to anyone, reasonable litigation costs.372 If damages are awarded,
except as provided in subsection (c), who “intention- the amount is to be for no less than $1,000.373
ally accesses without authorization a facility through
which an electronic communication service is C. Whether One Party or All Parties to
provided; or…intentionally exceeds an authorization a Communication Must Consent to
to access that facility; and thereby obtains, alters, or Audio Surveillance
prevents authorized access to a wire or electronic Fifty-nine transit agencies (81.94%) responding to
communication while it is in electronic storage….”364 the survey reported that their agency’s video surveil-
Communications are in electronic storage within the lance system also records audio.374 The Milwaukee
meaning of the SCA even when “the storage is tran- County Transit System (MCTS) advised that Wiscon-
sitory and lasts for only a few seconds.”365 sin is a one-party consent state where only one party
Section 2701 prohibits only unauthorized access must be notified and consent to audio recording. The
and not the misappropriation or disclosure of infor- agency stated that “MCTS is that consenting party.”375
mation.366 All that is required for a violation of the The federal statute and many state statutes require
statute is the defendant’s “act of accessing electroni- that one party to an oral or electronic communication
cally stored data.”367 Thus, the section “outlaws ille- must consent to its recording or interception. Some
gal entry, not larceny.”368 A person with authorized state statutes require that all parties must consent.
access to a database does not violate the section no The federal statute provides that “[e]xcept as other-
matter how malicious or larcenous the intended use wise specifically provided in this chapter…any person
of that access.369 who…intentionally intercepts, endeavors to intercept,
Section 2707 states, or procures any other person to intercept or endeavor
any provider of electronic communication service, subscriber, to intercept, any wire, oral, or electronic communica-
or other person aggrieved by any violation of this chapter tion…shall be punished as provided in subsection (4)
[18 USC §§2701-2712] in which the conduct constituting or shall be subject to suit as provided in subsection
the violation is engaged in with a knowing or intentional
state of mind may, in a civil action, recover from the person (5).”376 However, it is not unlawful under the statute
or entity, other than the United States, which engaged in for a person not acting under color of law to intercept a wire,
that violation such relief as may be appropriate.370 oral, or electronic communication where such person is a
party to the communication or where one of the parties to the
Thus, government entities are subject to civil liabil- communication has given prior consent to such interception
unless such communication is intercepted for the purpose of
ity under 18 U.S.C. § 2707(a).371 A plaintiff may be
committing any criminal or tortious act in violation of the
awarded equitable or declaratory relief as appropri- Constitution or laws of the United States or of any State.377
ate, damages, a reasonable attorney’s fee, and other
There are state statutes that are identical or
363
Sherman v. Salton Max. Housewares, 94 F. Supp. 2d
817, 820 (2000). substantially similar to the federal statute.378
364
18 U.S.C. § 2701(a) (2017). 372
18 U.S.C. § 2707(b)(3) (2017).
365
Columbia Pictures, Inc. v. Bunnell, 245 F.R.D. 443, 373
18 U.S.C. § 2707(c) (2017).
450 (C.D. Cal. 2007) (citation omitted). 374
See Appendix C, transit agencies’ responses to ques-
366
Therapeutic Research Faculty v. NBTY, Inc., 488 tion 13. Eleven agencies (15.28%) do not have systems
F. Supp. 2d 991, 997–98 (E.D. Cal. 2007). that record audio. Two agencies (2.78%) did not respond to
367
In re Intuit Privacy Litigation, 138 F. Supp. 2d 1272, the question.
1276 (C.D. Cal. 2001). 375
See Appendix C, Milwaukee County Transit System’s
368
Sherman, 94 F. Supp. 2d at 821. response to question 22.
369
Id. 376
18 U.S.C. § 2511(1)(a) (2017).
370
The statute excludes an exception provided in 377
18 U.S.C. § 2511(2)(d) (2017) (emphasis supplied).
§ 2703(e). See Charles Doyle, Congressional Research Ser- 378
Ariz. Rev. Stat. Ann. § 13-3005(A)(1), (2); Colo. Rev.
vice, Privacy: An Abridged Overview of the Electronic Com- Stat. § 18-9-304(1)(a) (2017); Conn. Gen. Stat. § 53a-187(a)
munications Privacy Act, CRS Report, R41734, at 7 (2012), (2017); Del. Code Ann. tit. 11, ch. 24, § 2402(c)(4) (2017); Ind.
https://www.fas.org/sgp/crs/misc/R41734.pdf (last accessed Code Ann. § 35-31.5-2-176 (2017); Iowa Code Ann. § 727.8
Aug. 22, 2017) and Department of Justice, “Unlawful Access (2017); Miss. Code Ann. § § 41-29-531(e) (2017); Mo. Rev.
to Stored Communications - 18 U.S.C. § 2701,” https://www. Stat. § 542.402(2)(3) (2017); Neb. Rev. Stat. § 86-290(2)(c)
justice.gov/usam/criminal-resource-manual-1061-unlawful- (2017); N.J. Stat. Ann. § 2A:156A-4(d) (2017); N.M. Stat.
access-stored-communications-18-usc-2701 (last accessed Ann. § 30-12-1(E)(3) (2017); N.C. Gen. Stat. Ann. § 15A-287(a)
Aug. 22, 2017). (1) (2017); N.D. Cent. Code § 12.1-15-02(3) (b) and (c) (2017);
371
Organizacion JD Ltda. v. United States Dep’t of Justice, Okla. Stat. Ann. tit. 13 § 176.4(5) (2017); R.I. Gen. Laws
18 F.3d 91, 94 (2d Cir. 1994) (stating that “in order to give § 11-35-21-(c)(2) and (3) (2017); Tenn. Code Ann. § 39-13-
full meaning to the new statutory language, ‘entity’ must 601(a)(1)(D)(4) and (5) (2017); Tex. Penal Code § 16.02(c)(3)
be taken to mean governmental entity”), cert. denied, 512 (A) and (4)(A) and (B); Va. Code Ann. § 19.2-62(B)(2) (2017);
U.S. 1207, 114 S. Ct. 2679, 129 L. Ed. 2d 813 (1994). W. Va. Code § 62-1D-3(e) (2017); Wis. Stat. Ann. § 968.31(2)
(b) and (c) (2017); and Wyo. Stat. Ann. § 7-3-702(b)(iv) (2017).

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Legal Implications of Video Surveillance on Transit Systems

28

On one hand, when a statute allows one party to law prohibits a person “intentionally and without
consent to the recording or intercepting of a commu- the consent of all parties to a confidential communi-
nication that is otherwise lawful to record or inter- cation [from using] an electronic amplifying or
cept, the courts have agreed that consent by one party recording device to eavesdrop upon or record [a]
to the communication is sufficient.379 On the other confidential communication….”388 Although the term
hand, a non-party’s recording or interception of a person applies to “an individual acting or purporting
communication without the consent of any party to to act for or on behalf of any government or subdivi-
the communication has been held to violate the law.380 sion thereof, whether federal, state, or local,” the
New Jersey’s statute “mirror[s] the federal Wire- statute “excludes an individual known by all parties
tapping Act and fail[s] to prohibit the interception of to a confidential communication to be overhearing or
images.”381 In Kinsella v. Welch,382 a New Jersey appel- recording the communication.”389
late court held that N.J. Stat. Ann. § 2A:156A-3(a) In Illinois, a person commits the offense of
applies only to audio communications, and thus does eavesdropping when he or she knowingly and
not cover the video component of a recording. More- intentionally:
over, when one of the parties to a communication (1) Uses an eavesdropping device, in a surreptitious manner,
has given prior consent to an interception of the for the purpose of overhearing, transmitting, or recording
communication, it is not unlawful for the other party all or any part of any private conversation to which he or
she is not a party unless he or she does so with the consent
to intercept (e.g., record) the oral communication.383 of all of the parties to the private conversation;
In Audrenreid v. Circuit City Stores, Inc.,384 the
plaintiff alleged that the defendant subjected the (2) Uses an eavesdropping device, in a surreptitious manner,
for the purpose of transmitting or recording all or any part
plaintiff to video surveillance in violation of the of any private conversation to which he or she is a party
federal and Pennsylvania Wiretapping and Electronic unless he or she does so with the consent of all other parties
Surveillance Control Acts, 18 U.S.C. § 2510, et seq. and to the private conversation;
18 Pa. C.S. § 5701, et seq.385 However, the court held (3) Intercepts, records, or transcribes, in a surreptitious
that the statutes applied to a conversation and the manner, any private electronic communication to which he
“actual hearing of sound.”386 Thus, neither statute or she is not a party unless he or she does so with the consent
applied because the camera captured only images. of all parties to the private electronic communication; … or
In regard to recording or intercepting oral or elec- (5) Uses or discloses any information which he or she knows
tronic communications, some state statutes require or reasonably should know was obtained from a private
the consent of “all parties.”387 For example, California conversation or private electronic communication in viola-
tion of this Article, unless he or she does so with the consent
379
State v. Okubo, 651 P.2d 494, 497 (Haw. Ct. App. 1982 of all of the parties.390
(holding that “warrantless electronic recordings of the
audio portion of the conversations did not violate [Hawaiian In Pennsylvania, it is not unlawful for “[a] person,
law] because they were made with the consent of at least to intercept a wire, electronic or oral communica-
one of the parties to the conversations”), aff’d, 67 Haw.
tion, where all parties to the communication have
197, 682 P.2d 79 (1984); D’Onofrio v. D’Onofrio, 344 N.J.
Super. 147, 780 A.2d 593, 599 (N.J. App. 2001) (holding given prior consent to such interception.”391 Addi-
that the plaintiff could consent on behalf of his children tionally, the City of Pittsburgh, Pennsylvania Code
when necessary to protect the children from harm).
380
Miller v. Talley Dunn Gallery, LLC, 2016 Tex. App. Mass. Ann. Laws, ch. 272, § 99(B)(4) (“The term “intercep-
Lexis 2280, at *1, 26–29 (Tex. Ct. App. 2016). tion” means to secretly hear, secretly record, or aid another
to secretly hear or secretly record the contents of any wire
381
Fiore & Weinick, supra note 118, at 544 & n.181 (citing
or oral communication through the use of any intercepting
The New Jersey Wiretapping and Electronic Control Act,
device by any person other than a person given prior
N.J. Stat. Ann. §§ 2A:156A-1 to -34 (West Supp. 2007)).
authority by all parties to such communication….”)
382
362 N.J. Super. 143, 827 A.2d 325 (App. Div. 2003). (emphasis supplied); and Mich. Comp. Laws § 750.539c
383
N.J. Stat. Ann. § 2A:156A-4(d). (2017) (“Any person who is present or who is not present
384
97 F. Supp. 2d 660 (E.D. Pa. 2000). during a private conversation and who willfully uses any
385
Audrenreid, 97 F. Supp. 2d at 661. device to eavesdrop upon the conversation without the con-
sent of all parties thereto, or who knowingly aids, employs
386
Id. at 663.
or procures another person to do the same in violation of
387
See Conn. Gen. Stat. § 31-48b(d) (2017) (“No employer this section, is guilty of a felony punishable by imprison-
or his agent or representative and no employee or his ment in a state prison for not more than 2 years or by a fine
agent or representative shall intentionally overhear or of not more than $2,000.00, or both.”) (emphasis supplied).
record a conversation or discussion pertaining to employ- 388
Cal. Pen. Code § 632(a) (2017) (emphasis supplied).
ment contract negotiations between the two parties, by
means of any instrument, device or equipment, unless
389
Cal. Pen. Code § 632(b) (2017) (emphasis supplied).
such party has the consent of all parties to such conversa- 390
720 ILCS 5/14-2(a)(1)–(3) and (5) (2017) (emphasis
tion or discussion.”) (emphasis supplied); Ga. Code Ann. supplied).
§ 16-11-62(2)(B), but see Ga. Code Ann. § 16-11-66(a) (2017); 391
18 Pa. Const. Stat. § 5704(4) (2017).

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Legal Implications of Video Surveillance on Transit Systems

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of Ordinances prohibits public security cameras sixty-three transit agencies (87.50%) reported that
from recording audio.392 they use video surveillance in the workplace.396
The state of Washington’s statute may be the Fifty-six transit agencies (77.78%) give prior notice
most stringent in requiring the consent of all parties. to employees of their agency’s use of video surveil-
Unless otherwise permitted, it is unlawful for any lance in the workplace.397
individual, partnership, corporation, association, or For an employee to make a Fourth Amendment
the state of Washington, its agencies, and political claim based on video surveillance, the employee must
subdivisions to intercept, or record any: prove that he or she had “a subjective and objective
(a) Private communication transmitted by telephone, tele- reasonable expectation of privacy.”398 Because courts
graph, radio, or other device between two or more individu- may assume that an employee has a subjective expec-
als between points within or without the state by any device tation of privacy, the courts may focus on whether
electronic or otherwise designed to record and/or transmit
there was an objective expectation of privacy.399 The
said communication regardless how such device is powered
or actuated, without first obtaining the consent of all the reasonableness standard, however, “is so narrow that
participants in the communication; few employees will be protected from video surveil-
lance under the Fourth Amendment. The mere possi-
(b) Private conversation, by any device electronic or otherwise
designed to record or transmit such conversation regardless bility that an unexpected person may enter the area
how the device is powered or actuated without first obtaining may be enough to defeat an expectation of privacy.”400
the consent of all the persons engaged in the conversation.393 On the issue of workplace privacy, the courts tend
to follow the guidelines in O’Connor v. Ortega.401 In
Washington’s statute further requires, O’Connor, the issue was whether a public employee
Where consent by all parties is needed pursuant to this chap- had a reasonable expectation of privacy in his office,
ter, consent shall be considered obtained whenever one party
desk, and file cabinets at his place of work. The
has announced to all other parties engaged in the communica-
tion or conversation, in any reasonably effective manner, that Supreme Court, in an opinion by Justice O’Connor,
such communication or conversation is about to be recorded or first observed that the Fourth Amendment applies
transmitted: PROVIDED, That if the conversation is to be to the states through the Fourteenth Amendment to
recorded that said announcement shall also be recorded.394 the Constitution and thus to the conduct of govern-
ment officials.402
In sum, although it appears that under the federal
Second, Justice O’Connor wrote that the “work-
Wiretap Act and under most state statutes, one party’s
place includes those areas and items that are related
consent (e.g., a transit agency that is a party to the
to work and are generally within the employer’s
communication) is sufficient to record or intercept
control.”403 Nevertheless, there are places in the work-
lawfully an oral or electronic communication, several
place where employees have a reasonable expecta-
state statutes require the consent of all parties.
tion of privacy and against intrusion.404 In cases
VIII. VIDEO SURVEILLANCE AND THE RIGHT 396
See Appendix C, transit agencies’ responses to ques-
TO PRIVACY IN THE WORKPLACE tion 19(a). Seven agencies (9.72%) stated that they do not.
Two agencies (2.78%) did not respond to the question.
A. Whether a Public Employee Has Fourth 397
See Appendix C, transit agencies’ responses to ques-
Amendment Rights in the Workplace tion 19(b). Eleven agencies (15.28%) stated that they do
not. Five agencies (6.94%) did not respond to the question.
In general, the courts have held that “work- 398
Fiore & Weinick, supra note 118, at 535 (footnotes
related” searches are reasonable under the Fourth omitted).
Amendment.395 In responding to the survey, 399
Id. (footnotes omitted).
392
City of Pittsburgh, Pennsylvania Code of Ordinances,
400
Id. (footnotes omitted).
Art. VIII § 680.02 (2017). In contrast, the Maryland Tran-
401
480 U.S. 709, 714–19, 107 S. Ct. 1492, 1496–98, 94 L.
sit Authority records audio on some of its buses; however, Ed. 2d 714, 721–24 (1987). See also, Thompson v. Johnson
the Maryland attorney general’s office has stated that the County Community College, 930 F. Supp. 501 (D. Kan.
recording of audio does not violate Maryland’s wiretap- 1996, aff’d without op., 108 F.3d 1388 (10th Cir. 1997)
ping law. Transportation Nation, Maryland Expanding (holding that there was no reasonable expectation of pri-
Audio Recordings on Buses Over Privacy Objections, (Oct. vacy in a locker room that was also a storage area and
19, 2012), http://www.wnyc.org/story/285680-maryland- contained the air conditioning equipment where the col-
expanding-audio-recording-on-buses-over-privacy- lege had installed a video surveillance camera; and Ban-
objections/ (last accessed Aug. 22, 2017). nen v. Kings Local Sch. Dist. Bd. of Educ., 144 Ohio App.
393
Wash. Rev. Code Ann. § 9.73.030(1)(a) and (b) (2017) 3d 620, 761 N.E.2d 84 (2001) (no reasonable expectation of
(emphasis supplied). privacy in a break room open to all school employees).
394
Wash. Rev. Code Ann. § 9.73.030(3) (2017) (emphasis
402
O’Connor, 480 U.S. at 714, 107 S. Ct. at 1496, 94 L.
supplied). Ed. 2d at 721.
395
O’Connor v. Ortega, 480 U.S. 709, 720–21, 107 S. Ct.
403
Id. at 715, 107 S. Ct. at 1496–97, 94 L. Ed. 2d at 722.
1492, 1499, 94 L. Ed. 2d 714, 725 (1987).
404
Id. at 715, 107 S. Ct. at 1497, 94 L. Ed. 2d at 722.

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Legal Implications of Video Surveillance on Transit Systems

30

involving searches by a public employer, the Court material fact whether their Fourth Amendment
held that an invasion of employees’ legitimate expec- rights were violated.”413 The court ruled also,
tations of privacy must be balanced “against the There were no genuine issues of material fact concerning
government’s need for supervision, control, and the whether Plaintiffs’ California Constitutional right to privacy
efficient operation of the workplace.”405 was violated by Defendants Schneider and Thompson.…
Further, under California Government Code § 815.2(a),
Third, the Court held that except in cases when which holds a City liable for the injuries caused by its
a search of one’s property is unreasonable without employees acting in the scope of their employment, Defen-
a warrant, “a warrant requirement is not appropri- dant City is liable for Defendant Schneider’s violation of
ate when ‘the burden of obtaining a warrant is the California Constitution.414
likely to frustrate the governmental purpose
behind the search.’”406 In Laba v. Chicago Transit Authority,415 the plain-
Fourth, the Court held that the probable cause tiffs alleged that their former employer, the defen-
standard does not apply to workplace searches: dant Chicago Transit Authority (CTA), videotaped
them without their knowledge or consent from at
A standard of reasonableness will neither unduly burden
the efforts of government employers to ensure the efficient least September to October 2013 in an electrical room
and proper operation of the workplace, nor authorize arbi- at work where they were permitted to change their
trary intrusions upon the privacy of public employees. We clothes.416 The defendants argued that the plaintiffs
hold, therefore, that public employer intrusions on the failed to establish a Monell v. Dept. of Soc. Servs.417
constitutionally protected privacy interests of government
claim against the CTA because there was no allega-
employees for noninvestigatory, work-related purposes, as
well as for investigations of work-related misconduct, tion that the CTA president has final policymaking
should be judged by the standard of reasonableness under authority.418 However, in deciding the defendants’
all the circumstances.407 motion to dismiss, the court ruled that the plaintiffs
had alleged enough facts to permit the court to draw
Fifth, the absence of an employer policy on a “reasonable inference” that the president of the
privacy or searches in the workplace does not make CTA “may have possessed, or had been delegated,
a search unlawful.408 final policy-making authority that resulted in the
Finally, in the O’Connor case, the Court ruled violation of Plaintiffs’ constitutional rights.”419
that summary judgment was not appropriate
because there was a factual dispute concerning the B. Video Surveillance and Violation of
“actual justification for the search.”409 Collective Bargaining Agreements
In Trujillo v. City of Ontario,410 a federal district The only substantial federal restriction on
court in California agreed with other courts that employers’ use of video surveillance of employees is
have stated that “covert video surveillance is partic- based on National Labor Relations Board (NLRB)
ularly intrusive.411 The Trujillo court ruled that a decisions that “require employers to bargain with
detective’s decision to conduct video surveillance of unions before installing and using hidden cameras
the men’s locker room in the City of Ontario Police in the workplace.”420 In responding to the survey,
Department was an unlawful search. The locker nineteen transit agencies (26.39%) reported that
room was a place where the plaintiffs had an objec- they bargained with employees or the union before
tively reasonable expectation of privacy. The plain-
tiffs did not have to have “an expectation of total 413
Id. at 1109.
privacy in order to have a reasonable expectation 414
Id. at 1121.
that they will not be recorded surreptitiously while 415
No. 14-C-4091, 2015 U.S. Dist. LEXIS 70758, at *1
changing clothes in a locker room.”412 The court (N.D. Ill. 2015).
ruled that the plaintiffs had “satisfied their burden
416
Id. at *2.
of demonstrating that there are no genuine issues of
417
436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978).
The U.S. Supreme Court determined that a municipality is
405
Id. at 715, 107 S. Ct. at 1499, 94 L. Ed. 2d at 724. not vicariously liable under 42 § 1983. Laba, 2015 U.S.
406
Id. at 715, 107 S. Ct. at 1499, 94 L. Ed. 2d at 725 LEXIS 70758 at *5.
(citation omitted).
418
Laba, 2015 U.S. Dist. LEXIS 70758 at *4.
407
Id. at 715, 107 S. Ct. at 1502, 94 L. Ed. 2d at 728.
419
Id. at *6.
408
Id. at 715, 107 S. Ct. at 1503, 94 L. Ed. 2d at 730.
420
Jamila Asha Johnson, The Union Workplace Meets
409
Id. at 715, 107 S. Ct. at 1502, 94 L. Ed. 2d at 729. Big Brother: Advising clients on employer conduct with
regard to hidden surveillance, [sic] 3 Shidler J. L. Com. &
410
428 F. Supp. 2d 1094 (C.D. Calif. 2006), aff’d, Bernhard Tech. 2, P4 (2006), hereinafter referred to as “Johnson.” See
v. City of Ontario, 270 F. App’x 518 (9th Cir. 2008). id. at P 8 for a discussion of Colgate-Palmolive v. NLRB, 323
411
Id. at 1107 and n. 9 (citing cases regarding the sever- NLRB 515 (1997) and id. beginning at P2 for a discussion
ity of video surveillance). of Brewers and Maltsters, v. NLRB, 414 F. 3d 36 (2005)
412
Id. at 1104 (citation omitted). (Anheuser–Busch) analyzed in this part of the digest.

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Legal Implications of Video Surveillance on Transit Systems

31

adopting a video surveillance system. Forty-three The court also stated that “the extent of possible
agencies (59.72%) said that they did not.421 privacy concerns is not necessarily dispositive in
In Colgate Palmolive Co. & Local 15, Interna- determining whether an employer must bargain over
tional Chemical Workers Union,422 Colgate Palmol- the installation and use of a particular camera.”431
ive Co. (Colgate) implemented video surveillance However, as seen in Colgate, supra, collective bargain-
because of an increase of theft in the workplace and ing on mandatory subjects
because of suspected misconduct by employees.423 does not require that the employer and the workers come to
The NLRB affirmed an Administrative Law Judge’s an agreement—the parties must only bargain until they
ruling that when Colgate installed hidden cameras reach an agreement or an “impasse.” An impasse occurs
when it is clear that no further progress is expected on an
without bargaining with the Union, it violated the issue. With permissive subjects of bargaining there is no
National Labor Relations Act.424 The NLRB ruled requirement to even reach an impasse.432
that the use of hidden surveillance cameras is a
mandatory subject of bargaining, because Colgate’s As for the discipline that Anheuser–Busch
decision to use video surveillance was “not a mana- imposed on some employees, the court held that the
gerial decision that lies at the core of entrepreneur- NLRB had treated “like situations” in other cases
ial control.”425 The NLRB did not address the kind of differently and, therefore, remanded the case so that
agreement or arrangement that should result from the Board could apply, adequately distinguish, or
the parties’ collective bargaining.426 overrule the Board’s prior precedents.433
In Brewers and Maltsters, Local Union No. 6 v.
National Labor Relations Board,427 an Administra- C. State Statutes on Video Surveillance in
tive Law Judge ruled that Anheuser–Busch, Inc. the Workplace
(Anheuser–Busch) violated the National Labor Rela- The use of video surveillance in the workplace has
tions Act when the company, without first notifying become quite common.434 However, employees have
and bargaining with the Union, used cameras to little constitutional, statutory, or common law recourse
surveil an area where employees worked and took for an employer’s use of video surveillance.435
breaks.428 After the surveillance revealed miscon- Only California’s constitution recognizes a right
duct, Anheuser–Busch discharged five employees to privacy that applies to private actors.436 In Chico
and imposed lesser discipline on eleven other employ- Feminist Women’s Health Center v. Scully,437 the
ees. The NLRB, with one member dissenting, ruled court stated that California’s “privacy guaranty is
that Anheuser–Busch violated the National Labor broader than the federal privacy right.… Article I,
Relations Act by failing to bargain with the Union section 1 of the California Constitution expressly
regarding the installation and use of hidden cameras, makes the pursuit and obtaining of privacy an
as well as by failing to provide the Union with infor- “inalienable right.” …[I]t has been held the state
mation that it had requested about the cameras.429 privacy right protects against invasions of privacy
In affirming the NLRB’s ruling, the D.C. Circuit by private citizens as well as the state.”438
stated that “the well-established test for determin-
ing whether a subject is a term or condition of
431
Id.
employment is not whether it affects employees’
432
Johnson, supra note 420, at P5 & n. 14 (citing 2
Guide to Employment Law and Regulations § 17:311
privacy interests, but whether it is ‘plainly germane (2006) and Quaker State Oil Ref. Corp., 107 NLRB 34, 35
to the working environment’ and ‘not among those (1993)). In Johnson’s opinion, “[m]ost employers can use
managerial decisions, which lie at the core of entre- hidden surveillance in the workplace without repercus-
preneurial control.”’430 sion.” Id. at P26.
433
Brewers and Maltsters, 414 F.3d at 47–48.
421
See Appendix C, transit agencies’ responses to ques- 434
Fiore & Weinick, supra note 118, at 525.
tion 19(c). Ten agencies (13.89%) did not respond to the
question.
435
Id. at 527.
422
323 N.L.R.B. 515 (1997).
436
Id. at 542 (citing Hill v. NCAA, 865 P.2d 633, 644
(1994) (holding that the California state constitutional
423
Colgate-Palmolive, 323 N.L.R.B. at 515. privacy provision “creates a right of action against private
424
See 29 U.S.C. § 158(a)(5) (2000). entities as well as government entities”)).
425
Colgate-Palmolive, 323 N.L.R.B. at 515. 437
208 Cal. App. 3d 230, 256 Cal. Rptr. 194 (Cal. App.
426
Id. at 516. 1989).
427
367 U.S. App. D.C. 145, 414 F.3d 36 (D.C. Cir. 2005), 438
Id. at 241–42, 256 Cal. Rptr. at 199–200 (citations
review denied, 303 F. App’x 899 (D.C. Cir. 2008). omitted).
428
Id. at 40, 41.
429
Id. at 38.
430
Id. at 43 (citations omitted) (some internal quotation
marks omitted).

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Legal Implications of Video Surveillance on Transit Systems

32

In Trujillo v. City of Ontario,439 the court stated, A Rhode Island statute provides that an employer
“To establish a claim under the California Constitu- may not “cause an audio or video recording to be
tion, a plaintiff must establish the following: (1) a made of an employee in a restroom, locker room, or
legally protected privacy interest; (2) a reasonable room designated by an employer for employees to
expectation of privacy in the circumstances; and (3) change their clothes, unless authorized by court
conduct by defendant constituting a serious inva- order.”446 The statute further states that any record-
sion of privacy.”440 ing made in violation of the statute may not be “used
Because other state constitutions do not protect by an employer for any purpose.”447
employee privacy, employees must rely on state stat- A second category of statutes protects employees
utes that prohibit or restrict the use of video surveil- from video surveillance of their “intensely private”
lance or argue that the employees have a reasonable activities.448 As noted, Connecticut prohibits the use
expectation of privacy in some places.441 Although of electronic surveillance in areas used by employ-
some states have laws protecting employee privacy, ees for personal comfort and health and in areas
the scope of the laws is “inconsistent.”442 they use to protect their possessions.449
One category of statutes protects employees from In New York, an employer may not make “a video
video surveillance that includes audio surveil- recording…of an employee in a restroom, locker room,
lance.443 A Connecticut statute prohibits public and or room designated by an employer for employees to
private employers from operating change their clothes, unless authorized by court
any electronic surveillance device or system, including but order.”450 A video recording made in violation of the
not limited to the recording of sound or voice or a closed- statute may not be used by an employer “for any
circuit television system, or any combination thereof, for the purpose.”451 An employer violating the statute may be
purpose of recording or monitoring the activities of his
held liable to an employee for damages, reasonable
employees in areas designed for the health or personal
comfort of the employees or for safeguarding of their posses- attorneys’ fees, and costs, as well as be enjoined.452
sions, such as rest rooms, locker rooms or lounges.444 West Virginia prohibits a public or private
employer, including the employer’s agent or repre-
Connecticut also prohibits an employer, or the sentative, from operating an electronic surveillance
employer’s agent or representative, from intentionally device or system, such as a closed-circuit television
overhearing or recording “a conversation or discussion system or a video-recording device, “in areas
pertaining to employment contract negotiations designed for the health or personal comfort of the
between the two parties, by means of any instrument, employees or for safeguarding of their possessions,
device or equipment, unless such party has the consent such as rest rooms, shower rooms, locker rooms,
of all parties to such conversation or discussion.”445 dressing rooms and employee lounges.”453
439
428 F. Supp. 2d 1094 (C.D. Calif. 2006), aff’d, Bern- A third category of statutes requires that employ-
hard v. City of Ontario, 270 F. App’x 518 (9th Cir. 2008). ers give notice to employees of the presence of video
440
Id. at 1119 (citation omitted). surveillance.454 Connecticut requires an employer to
441
Fiore & Weinick, supra note 118, at 542. See also, post a conspicuous notice advising of the employer’s
Miriam H. Wugmeister & Christine E. Lyon, eds., Global use of electronic monitoring. The term electronic
Employee Privacy and Data Security Law, ch. 10, monitoring is defined to be “‘the collection of
Email and Internet Monitoring/Video and Physical Sur- information on an employer’s premises concerning
veillance, http://www.americanbar.org/content/dam/aba/
administrative/labor_law/meetings/2011/tech/a_04. employees’ activities or communications by any
authcheckdam.pdf (last accessed Aug. 22, 2017) (stating means other than direct observation,’” such as the
that “the employer’s best protection against liability for use of a camera.455
surveillance of employee communications is the employ-
ee’s knowledge of those monitoring activities”).
446
R.I. Gen. Laws § 28-6.12-1(a) (2017).
442
Fiore & Weinick, supra note 118, at 527 & n.16 (citing
447
R.I. Gen. Laws § 28-6.12-1(b) (2017).
N.Y. Lab. Law. § 203-c (2008); Conn. Gen. Stat. Ann. § 31-48b 448
Fiore & Weinick, supra note 118, at 542–43
(2003); N.J. Stat. Ann. §§ 2A:156A-1 to :156A-34 (2007)). (footnotes omitted).
443
Id. at 542–43 (footnotes omitted). 449
Conn. Gen. Stat. Ann. § 31-48b(b) (2017).
444
Conn. Gen. Stat. § 31-48b(b) (2017). Subsection (a) 450
N.Y. CLS Labor §§ 203-c(1) (2017).
defines the term employer to mean “the owner or owners 451
N.Y. CLS Labor §§ 203-c(2) (2017).
in the case of an unincorporated business, the partners 452
N.Y. CLS Labor §§ 203-c(3)(a)–(b) (2017).
in the case of a partnership, the officers in the case of a
corporation or in the case of the state, any town, city or
453
W. Va. Code § 21-3-20(a) (2017).
borough, or district, local or regional board of education, or
454
Fiore & Weinick, supra note 118, at 542–43
housing authority or district department of health, the (footnotes omitted).
chief executive officer thereof.” 455
Id. at 544 (quoting Conn. Gen. Stat. Ann. § 31-48d(a)(3)
445
Conn. Gen. Stat. § 31-48b(d) (2017). (West 2003)).

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Legal Implications of Video Surveillance on Transit Systems

33

D. Whether Transit Agencies Have Immunity and/or record operators of transit vehicles and/or
for Searches in the Workplace other equipment.464
In Trujillo, supra, the court observed that when On February 13, 2014, the California Office of the
government officials perform discretionary func- Attorney General responded to a state legislator’s
tions, they “generally are shielded from liability for question on whether the use of continuous video
civil damages insofar as their conduct does not surveillance of truck drivers during on-the-job driving
violate clearly established statutory or constitutional would be a misdemeanor under California Labor Code
rights of which a reasonable person would have § 1051 when the video is inspected by a third party for
known.’”456 However, in Trujillo there were no genu- the purpose of disciplining truck drivers. In the Attor-
ine issues of material fact concerning whether the ney General’s opinion, the use of continuous video
detective in question violated the plaintiff’s Fourth surveillance of truck drivers during on-the-job driving
Amendment rights.457 Thus, the responsible defen- is not a misdemeanor under Labor Code § 1051
dants, including the city, could be held liable, because provided that the third party is an agent of the driv-
the intrusion in the locker room was “a penetration er’s employer, the agent is videotaping and inspecting
into a ‘zone of physical or sensory privacy surround- the file for the sole benefit of the driver’s employer,
ing’ in which a person has an objectively reasonable and the file is furnished only to the driver’s employer.465
expectation of seclusion or solitude.”458 An Oregon case holds that employers may violate
In Laba, supra, as for whether the defendants had state labor laws if they unilaterally implement a
qualified immunity for the plaintiffs’ §1983 claim for policy of recording transit vehicle operators. Begin-
an “unreasonable workplace search and seizure” in ning in 2012, the Tri-County Metropolitan Trans-
violation of the Fourth Amendment, the court held portation District (TriMet) in Oregon introduced
that “the right to privacy at the workplace was audio and video surveillance of its bus operators.466
clearly established in O’Connor,” supra.459 Although The Amalgamated Transit Union filed a complaint
the individual defendants did not have a qualified with Oregon’s Employment Relations Board (Board)
immunity defense, the plaintiffs’ evidence would against TriMet for failing “to bargain in good faith”
have to show that they had a reasonable expectation by adopting new bus operator electronic surveil-
of privacy that the defendants violated.460 lance…in violation of Oregon law.467 The Board ruled
In Maryland v. Washington Metropolitan Area that the installation of surveillance devices to record
Transit Authority,461 the court held that WMATA, as bus operators was not a de minimus change to the
an interstate compact agency and instrumentality operators’ conditions of employment. The Board
of Maryland, Virginia, and the District of Columbia, stated that “[t]here is undoubtedly a significant
is not a person within the meaning of § 1983 and impact on employee conditions of employment when
therefore cannot be sued under § 1983.462 Because every workplace movement, gesture, and utterance
the plaintiffs’ claims for violations of the Fourth and is recorded, even those that take place on an employ-
Fifth Amendments to the Constitution must be ee’s break time.”468 Because the policies were subject
construed as § 1983 claims, the plaintiffs could not 464
See Appendix C, transit agencies’ responses to ques-
bring their Fourth and Fifth Amendment claims tion 20. Fifteen agencies (20.83%) said that they do not.
against WMATA.463 The court allowed the plaintiffs Two agencies (2.78%) did not respond to the question.
leave to amend, but any § 1983 claims could be Available software analyzes and reports driving events
captured by the video event recorders to track and moni-
brought only against MV Transportation or the indi- tor driver behavior. The information is used for discipline
vidual defendants. and training and to assess liability in collisions.
465
Office of the Attorney General, State of California,
E. Video Surveillance of Transit Operators Opinion of Kamala D. Harris and Manuel M. Medeiros,
According to the survey conducted for this digest, Deputy Attorney General, No. 12-1101, at 1 (February
13, 2104), https://oag.ca.gov/system/files/opinions/pdfs/12-
fifty-five transit agencies (76.39%) use video surveil- 1101_0.pdf (last accessed Aug. 22, 2017).
lance (e.g., backward facing cameras) to monitor 466
ATU, Division 757 v. TriMet, Oregon Employment
Relations Board, No. UP-009-13, at 4–5 (2014), http://
456
Trujillo, 428 F. Supp. 2d at 1109 (citation omitted).
www.oregon.gov/ERB/orders/07-01-14%20thru%2006-30-
457
Id. at 1110. 15/UP00913.pdf (last accessed Aug. 22, 2017).
458
Id. at 1122 (citation omitted). 467
Id. at 1.
459
Laba, 2015 U.S. Dist. LEXIS 70758, at *11. 468
Id. at 23. See also, Anheuser–Busch, Inc., 342 NLRB
460
Id. at *12–13. 560 (2004), aff’d in relevant part sub nom Brewers and
461
No. 14-3397, 2015 U.S. Dist. LEXIS 91409, at *1 Maltsters Local No. 6 v. NLRB, 414 F.3d 36 (D.C. Cir. 2005);
(D. Md. 2015). National Steel Corporation, 335 NLRB 747 (2001), enf’d,
462
Id. at *7–8. 324 F.3d 928 (7th Cir. 2003); and Colgate-Palmolive Co.,
323 NLRB 515 (1997).
463
Id. at *8.

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Legal Implications of Video Surveillance on Transit Systems

34

to mandatory bargaining, the Board ordered TriMet should face an operator to provide evidence of
to stop video and audio surveillance of operators assaults.476 The report recommended that a transit
when they were on their break and to stop all audio agency address privacy questions, including why
recordings of bus operators.469 data are being collected, what data will be collected,
when data will be collected, how privacy and confi-
F. Use of Video Surveillance to Deter or dentiality concerns will be addressed, and how data
Prevent Assaults on Transit Workers will be managed, analyzed, and stored.477 However,
Another reason for a transit agency to use video because of issues of employee morale and distrac-
surveillance is to deter or prevent assaults on tion, the monitoring of transit employees should be
transit workers. In 2015, the Transit Advisory negotiated with employees or their unions.478
Committee for Safety (TRACS) developed recom-
mendations for the FTA for a Safety Management G. Transit Agencies’ Policies on
System to mitigate and/or prevent assaults on Employees’ Activation or Deactivation of
transit workers,470 including the use of audio and Surveillance Equipment
video surveillance.471 In response to the survey, twelve transit agencies
According to the Report, (16.67%) reported that they have a policy on when
The Los Angeles County Metropolitan Transportation employees must activate video surveillance; however,
Authority has achieved lower assault rates by installing fifty-five agencies (76.39%) said that they do not
video surveillance on many of its buses along with two have a policy.479 As for whether employees are prohib-
monitors showing the passengers what is being recorded.
ited from deactivating video surveillance equipment,
While some cameras automatically transmit video to police
for real-time surveillance, agencies can also choose to although twenty transit agencies (27.78%) have a
provide police with only clips recorded around the time an policy, forty agencies (55.56%) do not.480
incident was reported to have occurred.472 The agencies provided various but similar expla-
nations. For example, the Ann Arbor Transportation
After the Memphis Area Transit Authority Authority does not have a policy because video
installed cameras on its buses, the agency detected surveillance in its transit facilities is always in opera-
assaults that had gone unreported. Bus operators tion; moreover, when an operator starts a bus, the
had not reported what they had regarded as routine on-board cameras automatically turn on.481 Although
incidents of assault.473 the Greater Peoria Mass Transit District also does
To deter aggressive behavior, TRACS recom- not have a policy, its employees do not have the abil-
mended that transit agencies install cameras at ity to turn the District’s video surveillance system
stations and on buses and passenger rail cars, along on or off.482 Similarly, the Intercity Transit’s video
with clear signage noting the presence of surveil- surveillance on coaches and paratransit vehicles
lance cameras, and that transit workers remind starts automatically when there is ignition and oper-
passengers of the presence of surveillance.474 TRACS ates while the vehicles are in service. Its systems at
recommended also that video surveillance systems the transit centers and park-and-ride lots are motion-
of buses and passenger trains cover the entire activated and operate twenty-four hours, seven days
passenger area, as well as all entry and exit doors; a week. The Milwaukee County Transit System’s
that camera resolution be sufficient to permit facial
recognition; and that there be enough lighting for 476
Id.
good image quality in all conditions.475 Video moni- 477
Id. at 28.
tors should demonstrate to boarding passengers the 478
Id. at 11.
presence of video surveillance, cameras should be 479
See Appendix C, transit agencies’ responses to ques-
installed outside transit vehicles, and cameras tion 21(a). Five agencies (6.94%) did not respond to the
question.
469
ATU, Division 757, at 28. 480
See Appendix C, transit agencies’ responses to ques-
470
Transit Advisory Committee for Safety (TRACS), tion 21(b). Twelve agencies (16.67%) did not respond to
14-01 Report, Preventing and Mitigating Transit Worker the question.
Assaults in the Bus and Rail Transit Industry (July 2015), 481
See Appendix C, Ann Arbor Transportation Authori-
https://www.transit.dot.gov/sites/fta.dot.gov/files/Final_ ty’s response to question 21(a). There is video surveillance
TRACS_Assaults_Report_14-01_07_06_15_pdf_rv6.pdf twenty-four hours, seven days a week, at the District’s facil-
(last accessed Aug. 22, 2017). ities. Whenever a bus is turned on, the video surveillance
471
Id. at vi. system is activated.
472
Id. at 10–11 (footnote omitted). 482
See Appendix C, Greater Peoria Mass Transit Dis-
473
Id. at 1. trict’s response to question 21(a). There is video surveil-
474
Id. at 10 (footnote omitted). lance twenty-four hours, seven days a week, at the District’s
facilities. Whenever a bus is turned on, the video surveil-
475
Id. at 11. lance system is activated.

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Legal Implications of Video Surveillance on Transit Systems

35

camera system activates automatically when a bus is The states of Arkansas, Alabama, California, Dela-
turned on. Its equipment is secure because operators ware, Indiana, Iowa, Michigan, Minnesota, Missouri,
are unable to activate or deactivate the system.483 New Jersey, South Carolina, Texas, Vermont, and
Washington and the District of Columbia are among
IX. REMEDIES AT COMMON LAW FOR the jurisdictions that recognize a common law right to
INVASION OF PRIVACY privacy. However, New York492 and Virginia493 do not
recognize a common law right to privacy.494
A. States That Recognize an Invasion of Some courts have adopted the Restatement of Torts
Privacy at Common Law (Second) as the basis for an action for an invasion of
In the absence of constitutional or statutory reme- privacy.495 Michigan courts, which have “long recog-
dies, a victim of an alleged invasion of privacy must nized the common law tort of invasion of privacy,”496
rely on tort law.484 As stated, a government-owned 492
See Burck v. Mars, Inc., 571 F. Supp. 2d 446, 450 (S.D.
transit agency may have sovereign immunity to tort N.Y. 2008). Although New York does not have a common
claims in some states.485 For example, in Laba, supra, law right to privacy, there is a statutory right to privacy
one of the issues was whether under the Illinois Local against commercial appropriation. See also, Lohan v. Perez,
Governmental and Governmental Employees Tort 924 F. Supp. 2d 447, 453 (E.D.N.Y. 2013); Allison v. Clos-
Ette Too, 14 Civ-1618, 2014 U.S. Dist. LEXIS 143517, at *1
Immunity Act486 the plaintiffs could seek indemnifi-
(S.D.N.Y. Sept. 15, 2014), report and recommendation
cation from the CTA for any tort judgment or settle- adopted sub nom., 2014 U.S. Dist. LEXIS 143066, at *1
ment for compensatory damages for which the CTA (S.D.N.Y. Oct. 7, 2014); and Hunt v. Conroy, 1:13-CV-1493,
or an employee acting within the scope of his employ- 2014 U.S. Dist. LEXIS 52305, at *1 (N.D.N.Y. Apr. 16, 2014).
ment is liable.487 Because there was no exception in 493
Wiest v. E-Fense, Inc., 356 F. Supp. 2d 604, 612 (E.D.
the Act that allows a plaintiff to seek indemnification Va. 2005).
from the CTA, the court dismissed the claim.488
494
See Phillips v. Smalley Maintenance Services, Inc., 711
F.2d 1524, 1533 (1983) (“Since 1948, beginning with the case
In Trujillo, supra, the defendants argued that one
of Smith v. Doss, 251 Ala. 250, 37 So.2d 118 (1948), Alabama
defendant was “protected under California Govern- has recognized the tort of ‘invasion of the right to privacy.’”
ment Code § 820.2 because his decision to conduct (citations omitted)); Milam v. Bank of Cabot, 327 Ark. 256,
covert surveillance in the locker room was pursuant 937 S.W.2d 653 (Ark. 1997); Metter v. Los Angeles Examiner,
to discretion vested in him as a detective.”489 Section 35 Cal. App. 2d 304, 95 P.2d 491 (1939); Peay v. Curtis Pub-
lishing Co., 78 F. Supp. 305 (D.D.C. 1948); State v. Holden, 54
820.2 states,
A.3d 1123 (Del. Super. Ct. 2010); Davis v. General Finance &
Except as otherwise provided by statute, a public employee is Thrift Corp., 80 Ga. App. 708, 57 S.E.2d 225 (1950); Conti-
not liable for an injury resulting from his act or omission where nental Optical Co. v. Reed, 119 Ind. App. 643, 86 N.E.2d 306
the act or omission was the result of the exercise of the discre- (1949); Bremmer v. Journal-Tribune Publishing Co., 247
tion vested in him, whether or not such discretion be abused. Iowa 817, 76 N.W.2d 762 (1956); Tate v. Woman’s Hops.
A discretionary act requires a conscious balancing of risks Found., 56 So.3d 194 (La. 2011); Dalley v. Dykema Gossett,
and advantages when making basic policy decisions….490 PLLC, 287 Mich. App. 296, 788 N.W.2d 679, 686 (2010) (quot-
ing Lewis v. LeGrow, 258 Mich. App. 175, 670 N.W.2d 675
(2003)); Meyerkord v. Zipatoni Co., 276 S.W.3d 319 (Mo. App.
The court held that the defendants had not shown
2008); Frey v. Dixon, 141 N.J. Eq. 481, 58 A.2d 86 (1948); Hol-
that the detective’s decision to implement covert loman v. Life Ins. Co., 192 S.C. 454, 7 S.E.2d 169 (1940); Rus-
video surveillance was an exercise of discretion sell v. American Real Estate Corp., 89 S.W.3d 204 (Tex. App.
rather than a routine decision on how to proceed 2002); Pion v. Bean, 2003 VT 79, 833 A.2d 1248 (2003); and
with an investigation.491 Mayer v. Huesner, 126 Wash. App. 114, 107 P.3d 152 (2005).
Although there were no cases located for the digest
495
Eric S. Pasternack, “HIPAA in the Age of Electronic
Health Records,” 41 Rutgers L. J. 817, 831 n.102 (2010),
in which a court held a transit agency liable for an
hereinafter referred to as “Pasternack” (citing Thomas J.
invasion of privacy for conducting public video surveil- Smedinghoff, “The Emerging Law of Data Security: A Focus
lance, at least fourteen states and the District of on the Key Legal Trends,” 934 Practising Law Institute 13,
Columbia recognize a right to privacy at common law. 22 (2008)). See Dwyer v. Am. Express Co., 273 Ill. App. 3d 742,
652 N.E.2d 1351 (1995) (holding that based on the Restate-
483
See Appendix C, transit agencies’ responses to ques- ment (Second) a credit card issuer’s compilation of a custom-
tion 21(a) and (b). er’s personal information and dissemination of customer
484
Douma & Deckenbach, supra note 122, at 295. lists to third parties was not a breach of privacy), appeal
485
See LRD 71, supra note 317, at 43. denied, 165 Ill. 2d 549, 165 Ill. 549, 662 N.E.2d 423 (1996))
486
745 ILCS 10/1-101—745 ILCS 10/9-107 (2017). and Lewis v. LeGrow, 258 Mich. App. 175, 188, 670 N.W.2d
675, 685 (2003) (stating that “[t]he Legislature has not
487
Laba, 2015 U.S. Dist. LEXIS 70758, at *17. defined what constitutes an invasion of privacy, but when
488
Id. at *18. interpreted in light of the common-law right to privacy, it is
489
Trujillo, 428 F. Supp. 2d at 1122. clear that it includes keeping sexual relations private”).
490
Id. at 1123. 96
Dalley v. Dykema Gossett, PLLC, 287 Mich. App. 296,
491
Id. 307, 788 N.W.2d 679, 686 (2010) (citing Lewis v. LeGrow,
258 Mich. App. 175, 670 N.W.2d 675 (2003)).

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Legal Implications of Video Surveillance on Transit Systems

36

have relied on William Prosser’s four bases on which media.”501 For a claim to be actionable, the disclosure
a claim in tort may be made for an invasion of privacy: must have revealed, for instance, “‘unpleasant or
“(1) the intrusion upon another’s seclusion or soli- disgraceful or humiliating illnesses’ or ‘hidden physi-
tude, or into another’s private affairs; (2) a public cal or psychiatric problems.’”502 In Yunker v. Pandora
disclosure of private facts about the individual; (3) Media, Inc.,503 the court dismissed plaintiff’s claims for
publicity that places someone in a false light in the public disclosure of private facts and intrusion upon
public eye; and (4) the appropriation of another’s like- seclusion, discussed below, because Pandora’s disclo-
ness for the defendant’s advantage.”497 sure or use of his PII was not “offensive or objection-
For a common law privacy claim, the defendant’s able to a reasonable person or highly offensive.”504
conduct must have been intentional, as mere negli- In Lake v. Wal-Mart Stores Inc.,505 concerning the
gence ordinarily will not suffice. Moreover, in some publication of nude photos by Wal-Mart employees,
states, a violation of privacy must have been the the court stated:
result of “willful or outrageous” conduct. For exam- Lake and Weber allege in their complaint that a photograph
ple, a federal court in California dismissed a plain- of their nude bodies has been publicized. One’s naked body
tiff’s privacy claim in part because there was no is a very private part of one’s person and generally known
to others only by choice. This is a type of privacy interest
showing that the defendant’s disclosure of the plain- worthy of protection. Therefore, without consideration of
tiff’s data was “‘sufficiently serious in its nature, the merits of Lake and Weber’s claims, we recognize the
scope, and actual or potential impact to constitute torts of intrusion upon seclusion, appropriation, and publi-
an egregious breach of the social norms underlying cation of private facts. Accordingly, we reverse the court of
the privacy right.’”498 appeals and the district court and hold that Lake and
Weber have stated a claim upon which relief may be granted
There are four potential bases for a claim in tort and their lawsuit may proceed.506
for an invasion of privacy that may apply to an
unauthorized use or disclosure of personal data: However, a tort action for public disclosure of
public disclosure of private facts, misappropriation, private facts is unlikely to succeed if an injury
false light, and intrusion upon seclusion.499 Not all caused by a disclosure is minimal.507
states that allow a claim for invasion of privacy
recognize all four types of claims. C. Claims for Misappropriation or False Light
Because they are mentioned in the Restatement,
B. Public Disclosure of Private Facts
privacy claims for misappropriation or false light
Although some states recognize “the tort of invasion will be noted briefly. For a plaintiff to make a claim
of privacy based on [an] unreasonable public disclo- for misappropriation or false light, a plaintiff’s infor-
sure of private facts,”500 most jurisdictions require that mation must have been revealed to the public by the
a disclosure of personal information must have been media, the same element that is usually required for
made to the general public, “usually through the a claim for a public disclosure of private facts.508
497
Lewis v. LeGrow, 258 Mich. App.175, 193, 670 N.W.2d
at 687 (citing Beaumont v. Brown, 65 Mich. App. 455, 461 D. Intrusion Upon Seclusion
(1975)); See William Prosser, Privacy, 48 Cal. L. Rev. 383, Another cause of action for invasion of privacy is for
389 (1960)). See also, Ross v. Trumbull County, 2001 Ohio intrusion upon seclusion, a tort that does not require a
App. LEXIS 495, at *1 (Feb. 9, 2001).
showing that a disclosure was made to the general
498
Yunker v. Pandora Media, No. 11-CV-03113, 2013
U.S. Dis. LEXIS 42691, at *40–41 (citation omitted). public.509 In an Arkansas case, the court observed that
499
Restatement (Third) of Torts. See Martha Tucker 501
Ayres, supra note 499, at 995 (stating that a recovery
Ayres, Confidentiality and Disclosure of Health Informa- in tort for an invasion of privacy is limited as the disclo-
tion in Arkansas, 64 Ark. L. Rev. 969, 994 (2011) (footnote sure or communication must be made “to the public at
omitted), hereinafter referred to as “Ayres.” large”); see Pritts, supra note 500, at 331.
500
Joy L. Pritts, Altered States: State Health Privacy 502
Pasternack, supra note 495, at 833 (citation omitted).
Laws and the Impact of the Federal Health Privacy Rule, 2 503
Yunker, 2013 U.S. Dist. LEXIS 42691, at *1 (N.D.
Yale J. Health Pol’y L. & Ethics 327, 331 & n.26 (citing, Calif. 2013).
inter alia, Ozer v. Borquez, 940 P.2d 371, 377 (Colo. 1997)
(stating that “[t]he requirement of public disclosure con-
504
Id. at *45.
notes publicity, which requires communication to the public
505
582 N.W.2d 231, 235 (Minn. 1998).
in general or to a large number of persons, as distinguished 506
Id.
from one individual or a few”) (2002)), hereinafter referred 507
Pasternack, supra note 495, at 833
to as “Pritts”; Lake v. Wal-Mart Stores Inc., 582 N.W.2d 231, 508
Ayres, supra note 499, at 998, 1000.
235 (Minn. 1998) (establishing a common law right to pri-
vacy in Minnesota including the torts of “intrusion upon
509
See Restatement (Second) § 652(B). See also, Reid v.
seclusion, appropriation, and publication of private facts”). Pierce County, 136 Wash. 2d 195, 206, 961 P.2d 333, 339–
40 (1998).

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Legal Implications of Video Surveillance on Transit Systems

37

the tort of intrusion requires “specific intrusive action defendants “intentionally pried into Plaintiffs’
as opposed to disclosing private information.”510 In private and personal matters when they filmed
California, there must be proof of an “intrusion into a Plaintiffs without their knowledge or consent.”519
private place, conversation or matter…in a manner In the absence of judicial precedent, it is difficult to
highly offensive to a reasonable person.”511 predict whether and under what circumstances a
In Watkins v. Cornell Companies, Inc.,512 a case in court would rule that a transit agency’s use of video
which the plaintiffs knew they were being filmed, surveillance would violate a person’s right to privacy
the plaintiffs sued for intrusion upon seclusion. at common law. A disclosure by a transit agency of
A federal court in Texas held, images of an individual likely would have to be inten-
Intrusion on seclusion requires proof of (1) an intentional tional. In some states, a violation of privacy must
intrusion, physically or otherwise, upon another’s solitude, have been caused by “willful or outrageous” conduct.520
seclusion, or private affairs or concerns, which (2) would be Thus far, the courts have not recognized a cause of
highly offensive to a reasonable person.… Liability does not
action for a violation of privacy resulting from a
turn on publication of any kind. The core of the tort of inva-
sion of privacy is the offense of prying into the private disclosure of data collected on individuals when they
domain of another, not the publicity that may result from are “on public streets.”521 In some states, there may be
such prying.513 a good faith defense that also may be codified in some
statutes.522 Finally, neither were there any cases
Likewise, in Rhoades v. Penn–Harris–Madison against a transit agency located for this digest, nor
School Corporation,514 a federal court in Indiana held did the transit agencies responding to the survey
that an intrusion claim requires physical contact or report any claims or cases, for an invasion of privacy
an invasion of a plaintiff’s physical space.515 because of an agency’s public video surveillance.
To succeed on an intrusion seclusion claim, a
plaintiff must prove that there was an intrusion, X. USE OF VIDEO SURVEILLANCE IN
that the intrusion was intentional, that the plaintiff TORT LITIGATION AND ACCIDENT AND
had a reasonable expectation of privacy in the CRIMINAL INVESTIGATIONS
matter intruded upon, and that the intrusion was
“highly offensive to a reasonable person.”516 Because A. Use of Video Surveillance in Tort Litigation
the tort is based on the psychological distress that There are various ways that video surveillance
an intrusion caused, it is not necessary that a wrong- may be used in tort litigation by or against transit
doer learn anything embarrassing or private about agencies. Of the transit agencies responding to the
or disclose any information concerning the person survey, fifty-one agencies (70.83%) have used video
who was harmed.517 In claims by employees for surveillance in tort claims brought by or against the
intrusion, an employee still may be unsuccessful if agency. Eighteen agencies (25%) stated that they
the employer shows that it “had a legitimate busi- had not.523 CT Transit reported that it has used video
ness reason for the intrusion that outweighs the surveillance “very often” in tort cases and that “video
employee’s privacy interest.”518 from every accident is retained and in many cases
In Laba, supra, the court would not dismiss the used to defend against claims that appear to exag-
plaintiffs’ claim for the defendants’ intrusion upon gerate the cause or extent of injuries.”524 The Greater
seclusion, because the plaintiffs alleged that the
519
Laba, 2015 U.S. Dist. LEXIS 70758, at *16.
510
Dunbar v. Cox Health Alliance, LLC, 446 B.R. 306,
313–14, 2011 Bankr. LEXIS 812, *19 (E.D. Ark. 2011).
520
Dorothy J. Glancy, Privacy and Intelligent Transpor-
tation Technology, 11 Santa Clara Computer & High Tech.
511
Grant v. United States, No. 2:11- CV - 00360, 2011 U.S. L.J. 151, 180 (1995).
Dist. LEXIS 61833, at *1, *20 (E.D. Cal. 2011), adopted by,
claim dismissed, 2011 U.S. Dist. LEXIS 78119, at *1 (E.D.
521
Garry, Douma, & Simon, supra note 121, at 104 &
Cal. 2011); see also id. at *23 (citing Cal. Civ. Code § 47(b)). n.33 (citing Kendra Rosenberg, Location Surveillance by
GPS: Balancing an Employer’s Business Interest with
512
No. 3: 11-CV-260, 2013 U.S. Dist. LEXIS 66376, at *1 Employee Privacy, 6 Wash J. L. Tech. & Arts 143, 150–54
(N.D. Tex. 2013), adopted by, summary judgment granted, (2010)).
Watkins v. Cornell Comps, No. 3:11-CV-260, 2013 U.S.
Dist. LEXIS 65969, at *1 (N.D. Tex. May 8, 2013).
522
E.g., Iowa Code § 22.10(3)(b)(2) (2017) does not per-
mit an award of damages against an agency when the
513
Id. at *21–22 (citations omitted) (internal quotation agency shows that it made reasonable efforts to prevent
marks omitted) (emphasis supplied). disclosure or “had good reason to believe and in good faith”
514
574 F. Supp. 2d 888 (N.D. Ind. 2008). that it was complying with the statute.
515
Id. at 908. 523
See Appendix C, transit agencies’ responses to
516
Fiore & Weinick, supra note 118, at 547. question 24(a). Three agencies (4.17%) did not respond to
517
Id. at 546 & n.202 (citing Restatement (Second) of the question.
Torts § 652B cmt. a and b (1977)). 524
See Appendix C, CT Transit’s response to question
518
Id. at 547. 24(a).

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Legal Implications of Video Surveillance on Transit Systems

38

Peoria Mass Transit District uses video records from a light rail platform. The North Carolina Court
often in the investigation and documentation of of Appeals held that there was a rational basis for
slips, trips, falls, defective equipment, human concluding that the officer was more likely than the
resources complaints, and other matters.525 jury to identify the defendant correctly as the indi-
In Frazier v. SEPTA,526 the Southeastern Penn- vidual shown in the surveillance footage.533
sylvania Transportation Authority (SEPTA)
conducted surveillance, including video surveillance, C. Effect of 23 U.S.C. § 409 on the
of the plaintiff after she brought a personal injury Admissibility of Video Surveillance
action against SEPTA. Frazier’s amended complaint In some cases, video surveillance data may be
included common law claims and a § 1983 claim inadmissible because of the preclusive effect of
against SEPTA based on what the plaintiff alleged 23 U.S.C. § 409:
was “intrusive surveillance” by SEPTA.527 Because Notwithstanding any other provision of law, reports,
SEPTA’s agents performed the acts of surveillance surveys, schedules, lists, or data compiled or collected for
entirely “outdoors and in public,” a federal district the purpose of identifying, evaluating, or planning the safety
enhancement of potential accident sites, hazardous road-
court in Pennsylvania ruled that the plaintiff had no
way conditions, or railway-highway crossings, pursuant to
reasonable expectation of privacy.528 sections 130, 144, and 148 of this title [23 USCS §§ 130, 144,
and 148] or for the purpose of developing any highway
B. Use of Video Surveillance in Accident and safety construction improvement project which may be
Criminal Investigations implemented utilizing Federal-aid highway funds shall not
be subject to discovery or admitted into evidence in a
Video surveillance may be used in accident and Federal or State court proceeding or considered for other
criminal investigations. Sixty-six transit agencies purposes in any action for damages arising from any occur-
(91.67%) responding to the survey stated that their rence at a location mentioned or addressed in such reports,
agencies use video surveillance in accident or crimi- surveys, schedules, lists, or data.534
nal investigations. Only four agencies (5.56%) stated
that they had not.529 The Sacramento Regional In Boyd v. Amtrak,535 a commuter rail train struck
Transit District reported that the District routinely and killed the plaintiff’s fifteen-year old daughter.536
uses video surveillance to determine the cause of The complaint alleged that the National Railroad
accidents and to investigate crimes and allegations Passenger Corporation (Amtrak), the Massachu-
of employee misconduct. Moreover, the District setts Bay Transportation Authority (MBTA), and an
stated that it averages a 40%-60% arrest rate of engineer were negligent; that Amtrak and MBTA
persons committing thefts on its transit system.530 committed statutory violations; and that Amtrak
In State v. Holley,531 a video surveillance camera and the MBTA were guilty of gross negligence
located at a nearby convenience store captured and willful, wanton, or reckless misconduct.537 The
images of the defendant and another individual appeals court, which affirmed a trial court’s
running toward a bus stop. A video surveillance dismissal of the action,538 ruled, inter alia, that
camera on the bus also captured their images. A 23 U.S.C. § 409 precluded the admission into
Connecticut appellate court held that the trial court evidence of surveillance evidence showing that the
did not abuse its discretion by allowing the state to defendants knew that “children were circumventing
present the testimony of a witness who identified safety gates at grade crossings….”539
the defendant from the video images that were The Supreme Judicial Court of Massachusetts
taken by the camera on the bus. agreed that under the circumstances § 409 precluded
In another criminal case, North Carolina v. the discovery of video surveillance and the admissi-
Patterson,532 the state relied on surveillance video bility of video surveillance at trial.540 However, the
images from the interior of a light rail train and court reversed and remanded the case in part because
525
See Appendix C, Greater Peoria Mass Transit Dis-
533
Id. at 9. The court also ruled that there was other
trict’s response to question 24(a). sufficient evidence identifying the defendant as the perpe-
trator; thus, any error in admitting the video surveillance
526
907 F. Supp. 116 (E.D. Pa. 1995).
footage was not prejudicial.
527
Id. at 118. 534
23 U.S.C. § 409 (2017).
528
Id. at 122. 535
446 Mass. 540, 845 N.E.2d 356 (2006).
529
See Appendix C, transit agencies’ responses to 536
Id. at 540–41, 845 N.E.2d at 359.
question 24(b). Two agencies (2.78%) did not respond to
the question.
537
Id. at 541, 845 N.E.2d at 359.
530
See Appendix C, Sacramento Regional Transit Dis-
538
Id. at 540–41, 845 N.E.2d at 359.
trict’s response to question 24(b). 539
Id. at 541, 845 N.E.2d at 359.
531
160 Conn. App. 578, 127 A.3d 221 (2015). 540
Id. at 541, n.4, 550 n.12, 845 N.E.2d at 359 n.4; 365
532
Slip Op., No COA15-1145 (N.C. Ct. App. Oct. 4, 2016). n.12.

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Legal Implications of Video Surveillance on Transit Systems

39

there was evidence “that the MBTA was aware, sepa- actions.547 In Concord v. Ambrose,548 a federal district
rate and apart from any surveillance evidence, that, court in California held that information on the
from time to time, pedestrians and bicyclists went Customs Bureau’s surveillance techniques were not
around lowered safety gates at grade crossings.”541 subject to production under the FOIA.549 As another
example, investigators from the Social Security
XI. DISCLOSURE OF VIDEO SURVEILLANCE Administration’s and the Office of the Inspector
RECORDS UNDER THE FEDERAL OR A STATE General’s Cooperative Disability Investigations
FREEDOM OF INFORMATION ACT OR program compile investigatory files that may include
EQUIVALENT LAW video surveillance of applicants for disability
benefits, including Supplemental Security Income
A. Federal and State FOIAs or Other payments.550 Depending on the circumstances and
Public Records Disclosure Laws and Video applicable FOIA exemption, courts, in addition to
Surveillance Data the one in Concord, supra, have refused to order
1. The Federal FOIA agencies to provide video surveillance records or
related information.551
Government-owned transit agencies that retain
or archive video surveillance data may be subject to 2. State FOIAs or Other Public Records
their state’s FOIA or other state or local public Disclosure Laws
records disclosure law. Although state and local tran- A threshold question is whether a state public
sit agencies are unlikely to be subject to the federal records disclosure law applies to political subdivi-
FOIA, many state disclosure laws are similar to the sions of the state or to municipalities that own a
federal FOIA. The federal FOIA creates a strong transit system. In its response to the survey, the
presumption of public access to agency records.542 Greater Peoria Mass Transit District stated that to
A FOIA or equivalent public records disclosure law prevent misuse or abuse of its surveillance system,
may be “a legal means through which surveillance access to see or review video is limited to the Direc-
data on individuals could be released to the public….”543 tor of Safety, Information Technology, and the Direc-
Documents, records, and data that are not required to tor of Operations but that when FOIA requirements
be published by an agency are subject to disclosure are met, video surveillance data are released to
unless the information comes within one of nine outside agencies.552 On one hand, The San Francisco
exemptions, one or more of which may apply to video Bay Area Rapid Transit District noted that its
surveillance.544 As explained by the District of Colum- recorded video data are subject to the law on
bia Circuit, the federal FOIA includes exemptions for requests for public records.553 On the other hand, the
“‘personnel and medical files and similar files the Hillsborough Transit Authority stated that its
disclosure of which would constitute a clearly unwar- surveillance videos are confidential and exempt
ranted invasion of personal privacy….’”545 Moreover, from Florida’s Public Records Act pursuant to Fla.
the Act exempts ‘‘‘investigatory files compiled for law Stat. §§ 119.071(3)(a) and 281.301.554
enforcement purposes except to the extent available
by law to a party other than an agency.’”546 547
Id. (citation omitted).
The exemption for investigatory files applies to 548
333 F. Supp. 958 (N.D. Cal. 1971).
files prepared for civil and criminal law enforcement 549
See 5 U.S.C. § 552(a)(2)(C).
550
Office of the Inspector General, Cooperative Disability
541
Id., 446 Mass. at 550, 845 N.E.2d at 365 (emphasis Investigations, http://oig.ssa.gov/cooperative-disability-
supplied). See Long v. CSX Transportation, Inc., No. 1:13- investigations-cdi (undated) (last accessed Aug. 22, 2017).
CV-990, 2015 U.S. Dist. Lexis 178934, at *1 (N.D. Ga. 2015) See Orth v. Astrue, No. 8:07-CV-1874, 2008 U.S. Dist. LEXIS
(reports privileged because of § 409) and Stark-Romero v. 101326, at *1, *6–10 (M.D. Fla. 2008) (rejecting the plain-
Amtrak, 276 F.R.D. 531 (D. N.M. 2011) (holding that BNSF tiff’s challenge to the admission of video surveillance col-
Railway must produce “geometry video” but that expert lected by the CDI’s investigators regarding the plaintiff’s
opinions premised on the video would be inadmissible application for disability benefits and SSI payments).
under § 409). 551
Elec. Privacy Info. Ctr. v. DOJ, 584 F. Supp. 2d 65 (D.
542
5 U.S.C. § 552(d) (2017). D.C. 2008); Medoff v. United States Cent. Intelligence
543
Guidelines for Public Video Surveillance, supra note Agency, 464 F. Supp. 158 (D. N.J. 1978); and N.Y. Times Co.
6, at 12 (footnote omitted). v. United States DOD, 499 F. Supp. 2d 501 (S.D. N.Y. 2007).
544
5 U.S.C. §§ 552(b)(1)–(9) (2017). Subsection (6) states 552
See Appendix C, Greater Peoria Mass Transit Dis-
that the section does not apply to “personnel and medical trict’s response to question 7.
files and similar files the disclosure of which would consti- 553
See Appendix C, San Francisco Bay Area Rapid
tute a clearly unwarranted invasion of personal privacy….” Transit District’s response to question 25.
545
Soucie v. David, 448 F.2d 1067, 1078 N 45 (D.C. Cir. 554
See Appendix C, Hillsborough Transit Authority’s
1971) (citation omitted). response to questions 22(a)–(d).
546
Id. (citation omitted).

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Legal Implications of Video Surveillance on Transit Systems

40

Assuming that a transit agency is subject to a personal privacy” unless the subject of the informa-
FOIA-type law, the statute may include one or more tion consents in writing to the disclosure.562 Also, in
exemptions pursuant to which a transit agency Illinois, “information specifically prohibited from
would be able to withhold surveillance data. First, a disclosure by federal or State law or rules and regu-
public records disclosure law may exempt certain lations implemented by federal or State law” may
personal data from disclosure. Section 31490 of not be disclosed.563 New York and Wisconsin have
the California Streets & Highways Code includes similar exemptions.564
privacy protections for travel and transit data State public records disclosure laws may exempt
collected by transit and toll road agencies. Although records that pertain to security plans or infrastruc-
§ 31490 imposes restrictions on the dissemination ture. In Florida, records, information, photographs,
of PII, the term PII does not include photographic and audio and visual presentations that reveal a
or video recordings.555 The California Government security system plan are confidential and exempt.565
Code provides that “[u]nless otherwise prohibited by It has been held that the public records statute
law, any agency that has information that consti- applies to video recordings.566
tutes an identifiable public record not exempt from In Baines v. Port Authority of New York and New
disclosure pursuant to this chapter that is in an Jersey,567 Baines sought a copy of certain videotapes
electronic format shall make that information avail- and other records of the Port Authority pursuant to
able in an electronic format when requested by its Freedom of Information Code (FOI Code), which
any person….”556 is based on the New York and New Jersey freedom of
Another California statute permits the City and information statutes. Exception 4 of the FOI Code
County of San Francisco to install automated prohibits the disclosure of documents that “‘if
forward-facing parking control devices on city- disclosed, could endanger the life or safety of any
owned public transit vehicles to take video images of person or jeopardize the safety and/or security of
parking violations in transit-only traffic lanes.557 any facility or information technology system….’”568
Because the video images are confidential, public The court ruled, “Records or information that detail
agencies may allow access to the records only for the the storing procedures of recorded video data,
purposes authorized by the statute.558 camera locations, video storage capacity, length of
In Pennsylvania, it is not necessary to disclose storage time, back-up capabilities for video storage,
“[a] record, the disclosure of which would be reason- and protocols for criminal incidents captured by
ably likely to result in a substantial and demonstra- video surveillance cameras clearly fall under exemp-
ble risk of physical harm to the personal security of tion 4 of the FOI Code.”569
an individual.”559 A Michigan exemption protects State disclosure laws may have exemptions simi-
“[i]nformation of a personal nature” from disclosure lar to California’s. In California, two exemptions to
“if public disclosure…would constitute a clearly disclosure that may apply to video surveillance are
unwarranted invasion of an individual’s privacy.”560 that the data are records that are the subject of
Illinois prohibits inspection and copying of a pending law enforcement investigation570 and/or
“[p]rivate information, unless disclosure is required that the public interest in non-disclosure outweighs
by another provision of [the Illinois FOIA], a state or the public interest in disclosure.571
federal law or court order.”561 Illinois provides that 562
5 ILCS 140/7(1)(c) (2017).
personal information contained in public records 563
5 ILCS 140/7(a) (2017).
may not be inspected or copied if the disclosure 564
See N.Y. Pub. Off. § 87(2)(a) (2017) and Wis. Stat.
would constitute “a clearly unwarranted invasion of § 19.36(1) (2017).
555
Cal. Sts. & High Code § 31490(o) (2017).
565
Fla. Stat. § 119.071(3)(a)(1) (2017). See also, Fla.
Att’y Gen. Advisory Legal Op. 2015-06 (April 16, 2015)
556
Cal. Gov’t Code § 6253.9(a) (2017).
(stating that “[s]urveillance tapes from a security system
557
Cal. Veh. Code § 40240(a) (2017). for a public building constitute information which reveals
558
Cal. Veh. Code § 40240(f) (2017). a security system which is confidential pursuant to sec-
559
65 Pa. Cons. Stat. §§ 67.708(b)(1)(ii) (2017). See also, tions 119.071(3)(a) and 281.301, Florida Statutes”).
Dorothy J. Glancy, Privacy on the Open Road, 30 Ohio 566
Cent. Fla. Reg’l Transp. Auth. v. Post-Newsweek
N.U.L. Rev. 295, 301 (2004). Stations Orlando, Inc., 157 So.3d 401, 405 (Fla. 5th DCA
560
Mich. Comp. Laws Serv. § 15.231, et seq. (2017) and 2015).
see id. § 15.243(a) (2017). See also, Michigan Fed’n of 567
2014 N.Y. Misc. LEXIS 3473, at *1 (Sup. Ct. N.Y.
Teachers v. University of Michigan, 753 N.W.2d 28 (Mich. Cnty. 2014).
2008) (holding that names and addresses of teachers were 568
Id. at *6.
part of a FOIA privacy exemption and therefore could not 569
Id. at *6–7.
be disclosed).
570
Cal. Gov’t Code §§ 6254 (f) and (f)(2) (2017).
561
5 ILCS 140/7(1)(b) (2017).
571
Cal. Gov’t Code § 6255 (2017).

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Legal Implications of Video Surveillance on Transit Systems

41

A District of Columbia case, Wemhoff v. District of In KSTP-TV v. Metropolitan Council,581 the issue
Columbia,572 involved the secondary uses of roadside- was how video data should be classified under the
collected data. The plaintiff made a FOIA request for Data Practices Act. KSTP-TV requested videos that
the names and addresses of motorists who received recorded two incidents and the drivers of Metro
traffic violations because of being photographed by a Transit buses. Metro Transit, a division of the
red-light camera. The court’s examination of the rele- Metropolitan Council, denied the request on the
vant provision of the DPPA focused on the impor- basis that the videos contained non-disclosable,
tance of maintaining drivers’ privacy states, “This private personnel data on the bus drivers.582 One
[narrow] construction ensures that individuals’ stat- issue was how the video data should be classified
utorily recognized rights to the privacy of their motor under the Data Practices Act.583 One of the excep-
vehicle records are not sacrificed whenever a litigant tions in the Data Practices Act is for personnel data,
raises the possibility of a tenuous connection between a term that is defined as data on an individual when
the protected information and issues tangentially the individual is or was an employee of a government
related to a conceivable litigation strategy.”573 entity.584 The Minnesota Supreme Court held that
The court denied the request because it was not a under the Minnesota statute “‘the classification of
“permissible use” within the meaning of the DPPA, data is determined by the law applicable to the data
and the disclosure would violate the DPPA and at the time a request for access to the data is made,
District of Columbia law.574 regardless of the data’s classification at the time it
The City of Pittsburgh, Pennsylvania Code of was collected, created, or received.’”585 However,
Ordinances, prohibits the dissemination of surveil- because the record failed to include facts that were
lance video to third parties, including private litigants, necessary to permit the court to determine whether
unless a matter involves alleged police misconduct.575 the data were public data or private personnel data
However, criminal defendants may obtain video when KSTP made its request, the court remanded
records from the city relevant to criminal charges the case.586
against them.576 The state of Washington’s approach
is different because the state “requires state and B. Transit Agency Policies and Practices
local agencies to disclose public records upon on Release to a Requestor of Video
request.”577 The state has decided that surveillance Surveillance Data
videos are public records because they contain infor- The San Diego Metropolitan Transit System’s
mation “relating” to government conduct.578 policy is to work with a requestor to narrow a request
One issue that has been litigated is the date that “to a specific 10–15 minute period or to identify a
data are to be classified for the purposes of a request. specific incident that we may have a record of—in
The Minnesota Government Data Practices Act (Data order to locate the video of a specific incident.”587
Practices Act) governs public access to information Otherwise, the San Diego Metropolitan Transit
maintained by government agencies in Minnesota.579 System may comply with the request by contracting
The Act “regulates the collection, creation, storage, with its video system consultant at an approximate
maintenance, dissemination, and access to govern- charge of $100 per hour paid by the requestor.588
ment data in government entities” and “establishes a
presumption that government data are public and C. Agency Waiver of Privacy Exemption
are accessible by the public for both inspection and Exemptions under a FOIA or similar legislation
copying unless there is federal law, a state statute, or may be waived. It has been held, for example, that if
a temporary classification of data that provides that a federal agency voluntarily discloses information
certain data are not public.”580 that is subject to the FOIA’s deliberative process priv-
ilege, the agency waives the right to claim later that
572
887 A.2d 1004 (D.C. 2005).
573
Id. at 1011 (citing Pichler v. UNITE, 339 F. Supp. 581
884 N.W.2d 342 (Minn. 2016).
2d 665, 668 (E.D. Pa. 2004) (internal quotation marks 582
Id. at 343.
omitted)). 583
Id.
574
Id. at 1012. 584
Minn. Stat. § 13.43, subdiv. 1.
575
City of Pittsburgh, Pennsylvania Code of Ordinances 585
KSTP-TV, 884 N.W.2d at 349 (quoting Minn. Stat.
§§ 683.01(a) and 683.06 (2017).
§ 13.03, subdiv. 9).
576
Id. at § 683.05(a) (2017). 586
Id. at 350.
577
Jane Does 1-15 v. King County, 192 Wash. App. 10, 587
Landers, supra note 15, at 245.
19, 366 P.3d 936, 943 (Wash. Ct. App. 2015). 588
Id. The Landers article also identifies some of the
578
Id. at 23, 366 P.3d at 943.
issues to consider when responding to requests for video
579
Minn. Stat. § 13.01 (2017). surveillance records. See id. at 245–46.
580
Minn. Stat. § 13.01, subdiv. 3 (2017).

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Legal Implications of Video Surveillance on Transit Systems

42

the information is exempt.589 Thus, an agency may under current constitutional jurisprudence, if video
waive its FOIA exemption if it freely discloses “confi- surveillance is otherwise lawful, a warrant is not
dential information to a person without restricting required before using such technologies. Some cities
that person’s ability to disclose that information.”590 and localities, however, have banned the use of tech-
nologies needed to identify and track an individual.
XII. CONCLUSION Under current Supreme Court precedent, a tran-
sit agency’s use of video surveillance does not violate
Video surveillance is commonly used in public the Constitution. Presently, there is neither a specific
transportation, including by transit agencies, for a constitutional right to privacy nor a constitutional
wide variety of reasons. Some agencies have adopted right to privacy in one’s public activities, including
policies that address, for example, how they provide travel or locational information. The Supreme Court
notice of the presence of video surveillance and/or and other courts have upheld the constitutionality
explain how long surveillance data are retained. of video surveillance on various grounds, such as
Although a transit agency’s use of video surveil- that public video surveillance is not a search within
lance appears to be constitutional, there are privacy the meaning of the Fourth Amendment and/or that
risks associated with using video surveillance. A under the circumstances an individual had no
transit agency’s video surveillance of a specific area reasonable expectation of privacy. No cases were
could be challenged because it violates a statute, a located for this digest holding that a transit or other
person’s reasonable expectation of privacy, or a agency’s deployment of a public video surveillance
person’s common law right to privacy under state system violates the Constitution. A factor that augurs
law. A transit agency may have a more robust legal well for the legality of transit agencies’ use of video
defense to any possible privacy claims when the surveillance is that the agencies generally give
agency is able to show that prior to adopting a video notice of the presence of video and/or audio and
surveillance system, it took steps to minimize any video surveillance.
negative effects that the system could have on the Some state constitutions protect an individual’s
public’s “constitutional rights and values.”591 Some right to privacy. However, it does not appear that
legal commentaries and reports argue that video state constitutional privacy provisions would apply
surveillance should be proportional to an agency’s necessarily to the use of video surveillance in public
need for surveillance and should adhere to certain places. In some states, the courts have recognized a
core principles as discussed in the digest. constitutional right to privacy; nevertheless, no
In general, although a permanent video surveil- cases against a transit agency were located for this
lance system may pose a greater risk to privacy, the digest involving an alleged violation of a state consti-
courts have upheld long-duration or even perma- tutional right to privacy because of an agency’s use
nent public video surveillance. Some states or locali- of video surveillance.
ties and transit agencies, respectively, have laws or Although several federal laws protect individuals’
polices that limit how long a public agency may privacy in some situations, the issue of whether to
retain or archive video surveillance data. protect individuals’ privacy rights has been left
Technologies that permit facial recognition and largely to the states. A few states, such as California,
identification and the tracking of an individual have enacted legislation that authorizes transit
also present a greater risk to privacy. Nevertheless, agencies to use video surveillance or that regulates
the use of video surveillance in other contexts. The
589
Shell Oil Co. v. IRS, 772 F. Supp. 202, 211 (holding Privacy Act of 1974 protects the privacy of individu-
that the IRS was required to release information requested als’ data maintained by federal agencies, but no
by an oil company under FOIA that an IRS employee had
previously read at a public meeting because a public read- federal statutes, other than the federal Wiretap Act
ing of the document constituted a waiver of the FOIA and the SCA, have been identified that are impli-
exemptions). cated by government-owned or privately-owned
590
Patrick Lightfoot, Waiving Goodbye to Nondisclosure transit agencies’ use of video and/or audio surveil-
Under FOIA’s Exemption 4: The Scope and Applicability of lance. Under the federal Wiretap Act, as well as most
the Waiver Doctrine, 61 Cath. U. L. Rev. 807, 808 (2012). state wiretap acts, unless one party to a communica-
591
Guidelines for Public Video Surveillance, supra note tion consents, the recording or interception of an oral
6, at vii, 7, 19, and 25.

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Legal Implications of Video Surveillance on Transit Systems

43

or electronic communication is prohibited. However, most likely applies to a claim for an invasion of
in some states, all parties to a communication must privacy because of a transit agency’s use of video
consent to one party’s recording or interception of a surveillance. The reason is that the tort of intrusion
communication. Although a law enforcement agency upon seclusion is based on a victim’s psychological
may obtain a warrant to intercept and/or record an distress caused by the intrusion, not by a public
oral or electronic communication, a non-party to a disclosure of information about an individual.
communication is not authorized to record or inter- However, no cases were located for the digest in
cept an oral or electronic communication without the which a transit or other agency was held liable for
consent of the parties to the communication. an invasion of privacy based on an agency’s use of
In general, public employers may monitor work- video surveillance.
places and property by video surveillance. Thus, As discussed in this digest, numerous transit
employees must rely on any state statutes that agencies responding to the survey reported that
prohibit the use of video surveillance in certain places they use video surveillance data in tort cases brought
or argue that they have a reasonable expectation of by and against transit agencies, as well as in acci-
privacy in particular areas in the workplace. Under dent, criminal, and other investigations.
federal and/or state law, before an employer imple- Government-owned transit agencies that retain or
ments video surveillance of employees, the employer archive video surveillance data are subject to their
may have to bargain with its employees or the union. state’s FOIA or equivalent state or local public records
It is possible that in some states, a transit agency disclosure law. State or local laws, however, may allow
could be held liable in tort for an invasion of privacy. a public agency to withhold, for example, personal or
The tort of intrusion upon seclusion is the tort that other data that are exempt from disclosure.

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Legal Implications of Video Surveillance on Transit Systems

44

APPENDICES

The following appendices are available online at www.trb.org by searching for TCRP LRD 52.

Appendix A: List of Transit Agencies Responding to the Survey

Appendix B: Survey Questions
Appendix C: Summary of Transit Agencies’ Responses to Survey Questions
Appendix D: Compendium of Federal and State Statutes on Audio and Video Surveillance
Appendix E: Documents Provided by Transit Agencies

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Legal Implications of Video Surveillance on Transit Systems

45

ACKNOWLEDGMENTS
This study was performed under the overall guidance of TCRP Project Committee J-5. The Committee
is chaired by Sheryl King Benford, Greater Cleveland Regional Transit Authority, Cleveland, Ohio.
Members are Rolf G. Asphaug, Denver Regional Transportation District, Denver, Colorado; Darrell
Brown, Capital Area Transit System, Baton Rouge, Louisiana; Robert I. Brownstein, AECOM,
Baltimore, Maryland; Teresa J. Moore, South Florida Regional Transportation Authority, Pompano
Beach, Florida; Elizabeth M. O’Neill, Metropolitan Atlanta Rapid Transit Authority, Atlanta, Georgia;
Robin M. Reitzes, San Francisco City Attorney’s Office, San Francisco, California; and James S.
Thiel, Madison, Wisconsin. Bonnie Graves provides liaison with the Federal Transit Administration.
Keira McNett serves as the liaison with the Amalgamated Transit Union, and Gwen Chisholm
Smith represents the TCRP staff.

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Legal Implications of Video Surveillance on Transit Systems

Transportation Research Board

500 Fifth Street, NW
Washington, DC 20001

Subscriber Categories: Administration and Management • Data and Information Technology •

Law • Public Transportation

These digests are issued in order to increase awareness of research results emanating from projects in the Cooperative Research Programs (CRP). Persons
wanting to pursue the project subject matter in greater depth should contact the CRP Staff, Transportation Research Board of the National Academies of
Sciences, Engineering, and Medicine, 500 Fifth Street, NW, Washington, DC 20001.

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