Over the years, clients have inquired about the legality of installing video cameras on their privately owned commercial real estate or business premises. The short answer is that such recordings are legal in California. However, a more complete answer requires that legal counsel for the client determine whether such recordings violate (or may foreseeably violate) a person’s constitutional right or reasonable expectation of privacy in the recorded area.
Volumes of legal authority have been written about whether a reasonable expectation of privacy exists in various situations. Therefore, one should not undertake to install video recording equipment until a knowledgeable business attorney has been consulted and given the green light. However, in California, we can also look to Penal Code § 647 for guidance. The relevant section of that statute provides:
- 647. Except as provided in subdivision (l), every person whocommits any of the following acts is guilty of disorderly conduct, amisdemeanor:
“…(j) (1) Any person who looks through a hole or opening, into, or
otherwise views, by means of any instrumentality, including, but not
limited to, a periscope, telescope, binoculars, camera, motion
picture camera, camcorder, or mobile phone, the interior of a
bedroom, bathroom, changing room, fitting room, dressing room, or
tanning booth, or the interior of any other area in which the
occupant has a reasonable expectation of privacy, with the intent to
invade the privacy of a person or persons inside. This subdivision
shall not apply to those areas of a private business used to count
currency or other negotiable instruments.[emphasis added]
(2) Any person who uses a concealed camcorder, motion picture
camera, or photographic camera of any type, to secretly videotape,
film, photograph, or record by electronic means, another,
identifiable person under or through the clothing being worn by that
other person, for the purpose of viewing the body of, or the
undergarments worn by, that other person, without the consent or
knowledge of that other person, with the intent to arouse, appeal to,
or gratify the lust, passions, or sexual desires of that person and
invade the privacy of that other person, under circumstances in which
the other person has a reasonable expectation of privacy.
(3) (A) Any person who uses a concealed camcorder, motion picture
camera, or photographic camera of any type, to secretly videotape,
film, photograph, or record by electronic means, another,
identifiable person who may be in a state of full or partial undress,
for the purpose of viewing the body of, or the undergarments worn
by, that other person, without the consent or knowledge of that other
person, in the interior of a bedroom, bathroom, changing room,
fitting room, dressing room, or tanning booth, or the interior of any
other area in which that other person has a reasonable expectation
of privacy, with the intent to invade the privacy of that other
person.”
Interestingly, while the right to privacy was clearly of paramount concern to the drafters of this legislation, it explicitly exempts areas in which currency is counted. However, this language should not be read to grant the unfettered right to record employees, customers, or others in an area where currency may be counted IF individuals in that area otherwise have a reasonable expectation of privacy, since it does not usurp a person’s federal or state constitutional rights.
Be aware, too, that there may be other local or municipal statutes which apply depending on your location. And if your video equipment also records sound, then there is a separate analysis for determining the legality of the audio recordings. For the sake of brevity, suffice it so say that California does not typically permit audio recordings unless all parties being recorded provide their consent.
Consent for various types of recording may be obtained contractually, such as in areas where employees are located, or guests of a vacation rental property. However, if it is foreseeable that other individuals may be recorded, it is imperative that notice of the recording be provided in a conspicuous location AND that the area being recorded does not involve a place, such as a bedroom, bathroom, locker room or other location where one may have a reasonable expectation of privacy.
If you have questions concerning the legality of placing recording equipment in your privately owned business location, contact the knowledgeable business attorneys at Gehres Law Group, P.C. We’re happy to assist our business community and your initial evaluation is always free.
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