Audio and Video Surveillance Laws

I. INTRODUCTION

Because the right to personal privacy is viewed as one of the most important rights available to Americans, most states have distinct laws regarding the use of cameras and audio recording equipment. Federal surveillance rules are provided under Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (“Title III”), as amended by Title I of the Electronic Communications Privacy Act of 1986 (“Title I”). Aside from voyeurism laws, there are no federal laws governing silent video surveillance.

II. APPLICABILITY TO BYU–HAWAII

BYU–Hawaii must comply with federal wiretapping law and any video surveillance and wiretapping laws in its respective jurisdictions, especially when considering the use of surveillance equipment in the workplace.

III. REQUIREMENTS

A. Video Surveillance

Federal Laws

Several courts have clearly stated that the federal surveillance rules do not apply to silent video surveillance. In Thompson v. Johnson Community College, the United States District Court for the District of Kansas noted that while video surveillance that also captures audio is regulated by the federal wiretapping law, the federal law is silent regarding video-only surveillance.

In the Ninth Circuit pf Appeals, which issues decisions controlling in Hawaii, the court ruled in United States v. Taketa that videotaping without aural interception does not violate federal law. The court later clarified in United States v. Koyomeijan that Title I neither prohibits nor regulates silent video surveillance.

Notably, in 2003 the Eighth Circuit found no congressional intent to regulate video surveillance under Title I and declared that “Title I neither regulates not prohibits silent video surveillance.”

State Laws

Hawaii law prohibit the installation in a private place of any device used for observing, recording, amplifying, or broadcasting sounds or events without the consent of the persons entitled to privacy therein. Hawaii defines a “private place” as “a place where one may reasonably expect to be safe from casual or hostile intrusion or surveillance, but does not include a place to which the public or a substantial group thereof has access..”

Hawaii law asks whether a “substantial group” of the public could access the place in order to determine whether it is a “private place”. In 1984, the Supreme Court of Hawaii provided some direction, ruling in State v. Lee that an employee’s personal office should be considered a “private place”.

B. Audio Surveillance

Federal Laws

Under federal law, the interception of any wire, oral, or electronic communication is prohibited unless at least one of the parties being recorded agrees to such a recording. Although employers may find it more easily defensible to receive explicit consent form employees prior to conducting audio surveillance, courts have ruled that implied consent is adequate. However, employee consent to be recorded in one aspect of their employment cannot be construed as consent to be recorded in all activities at the workplace.

State Laws

Hawaii law prohibits the installation or use of any device used to hear or record any sounds that would not ordinarily be audible without the consent of at least one of the persons being recorded. Although the statutory language might suggest that the consent of all parties involved in a conversation would be required to perform audio surveillance in Hawaii, courts have concluded that only one participant in a conversation is required to give consent.

IV. PENALTIES

Federal Laws

Any person found to have violated the federal wiretapping law will be fined between $1000-$10,000 or imprisoned for no more than five years, or both.
State Laws Violation of Hawaiian law regarding camera surveillance or wiretapping is considered a violation of privacy in the second degree.16 A violation of privacy is a misdemeanor, which is punishable by imprisonment for no more than one year or a fine not to exceed $2,000, or both. Additionally, the court may order the destruction of any recording made during a violation of privacy.