Evan Schuman's StorefrontBacktalk

For retailers, this might be looking for patterns of purchasing or traffic analysis. It may also include identifying children who are left alone, or potentially children who are abducted, and sending out an automated “Amber alert” in those cases. In cases like the Boston bombing, it could include technology that will identify abandoned luggage, backpacks or other items that might pose a threat. Many companies are now offering video surveillance as a service, which may include such smart technologies as well.

For retailers, there are several liability issues. First, unlike with website privacy policies, it is not clear how and when consumers “consent” to the video surveillance. As surveillance becomes more intimate, more detailed, and we make greater use of the results of that surveillance, the likelihood of consumer revolt increases. While some stores place notices that the areas are under potential video surveillance, this is typically not done to obtain consumer consent but rather to deter theft.

So just what does the retailer collect, in what detail, and what do they do with it? As facial recognition technology improves, and large databases of stored information become more affordable, companies should consider informing their shoppers exactly what they’re collecting, what they’re doing with that data, and why.

Although most consumers would happily accept video surveillance to prevent shoplifting, or identify those engaged in child kidnapping, they would likely be upset if they found their own behavior submitted to “America’s Funniest Home Videos” without their consent. Although occasional cooperation with law enforcement is not only acceptable but should be encouraged, retailers need to avoid both the perception and the reality of their becoming agents for law enforcement.

Many cities use video surveillance technologies on street corners and highways as a law enforcement tool. Companies should resist the urge to voluntarily become part of a mesh network of tens of thousands of video cameras, where they become agents of the police in capturing video for law enforcement purposes. Not only would this create legal liability and blur the line between retailers and the police, but it also would create a situation where customers might be afraid to go shopping for fear of being arrested for an outstanding parking ticket.

Once retailers collect and store massive amounts of data through video surveillance, they can become the “go to” place for information about people’s location and behavior. A disgruntled wife might subpoena the video surveillance logs of Tiffany and Co. to catch the husband purchasing jewelry for a girlfriend. Similarly, while federal law might protect records related to book purchases or video rentals, it’s not clear that the federal law would protect video surveillance records in a bookstore or video store.

Video surveillance records also become “documents” subject to discovery and litigation of all kinds. If the company is sued for employment discrimination, unfair practices, unsafe conditions, OSHA violations, or just about anything, the most likely thing to happen is for the “documents” of that company to be subpoenaed either by a private litigant or by some government agency.

We typically think of documents as being paper records or maybe email communications. But video surveillance records, particularly if they are stored for a long period of time, are also documents under the law and must, if relevant, be retained and produced. Even if there’s nothing incriminating on these records, because of the difficulty currently searching them, it may take hundreds or thousands of hours simply to look through them for discoverable information. And it may be discoverable information about things you hadn’t thought about.

For example if you are subpoenaed for any records indicating meetings between your company and a competitor (such as in an antitrust investigation), the video records showing the competitors walking into the office would be such a record discoverable under the law. Remember, for video records, like any other records, the more you keep, the more you have to disclose. The rule of thumb for video surveillance records is to create them as necessary for business records, make sure consumers have an adequate understanding of what you’re doing, and don’t do anything stupid with them.

Keep them for as long as you need them for business purposes, and then get rid of them. Another rule of thumb: If there’s anything you’re doing with the video records that you are keeping secret because you’re afraid that consumers wouldn’t like it, stop doing it. You’re allowed to videotape people because, in some way, they have consented to it. If you’re doing things with the video that you don’t think they would’ve consented to, then it’s probably wrong and you probably have liability.

Video surveillance is an effective tool when used properly. You can even save lives. But as in all other things, let’s be careful out there.

If you disagree with me, I’ll see you in court, buddy. If you agree with me, however, I would love to hear from you.