The Legal Risks Of External Surveillance

Written by Mark Rasch
April 25th, 2013

Attorney Mark D. Rasch is the former head of the U.S. Justice Department’s computer crime unit and today is a lawyer in Bethesda, Md., specializing in privacy and security law.

The cooperation of retailers like Lord & Taylor in the Boston bombing investigation proved to be invaluable and provided the most important clues to catching the two terrorism suspects. But retailers should be wary about using that incident as an invitation to increase the amount of surveillance that they conduct both inside and outside of their stores. Video surveillance, although a very powerful tool for certain things, can lead to loss of customer confidence, and even to liability..

In the United States, it is generally presumed that the use of video surveillance technology in non-“private” places (“private” as in bathrooms and changing rooms) is perfectly legal. Unlike audio surveillance, which is regulated by federal and state law, there appears to be little regulation of video surveillance technologies. Retailers regularly employ them for loss prevention purposes, inventory management, and to defend themselves in liability lawsuits such as workers’ compensation claims or “slip and fall” claims by customers. Video surveillance technology can also be useful in tracking customer behavior and traffic patterns; footfall analysis; to evaluate the effectiveness of advertising or displays; and even to evaluate the gender, age and behavior of customers.

What the Boston case demonstrates is that video surveillance technologies deployed by retailers can also be useful to third parties like law enforcement, or even intelligence agencies. Although Lord & Taylor was certainly happy to cooperate with an investigation of a bombing across the street from its office on Boylston Street, if the CIA, NSA or a foreign intelligence agency were to come to them and request copies of videotapes, it’s not clear that the retailer would want to associate itself as an agent of the intelligence communities. Moreover, to the extent that the request for video surveillance data becomes more ubiquitous, retailers will be spending tens of millions of dollars not only on the technology but also on data analysis and data capture, and in compliance costs when turning the relevant data over to law enforcement or intelligence communities.

Most current video surveillance technology is not particularly useful for law enforcement purposes. It is relatively low-definition and, because of the volume of data collected, difficult to sift through and difficult to understand. Indeed, in the Boston case, the FBI and Boston police released what they believed to be the highest-quality video of the two suspects to the public in order to get their assistance in identifying these individuals. Even the suspects’ roommates and best friends could not identify them from these videos.

But video surveillance technology is getting better, and getting smarter, and that may not be a good thing for retailers. Among the trends associated with video technology are increasing use of high definition Internet protocol-based cloud stored and remotely monitored video surveillance. This means that high-quality video, often capturing a 360-degree field of view, is being pumped in real-time over the Internet to offshore, where it can be monitored in bulk. Artificial intelligence programs, either on the video capture devices themselves, or using data analytics, help the viewer identify the types of behavior or characteristics they’re looking for.


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