Webinar presenter Rick Hodsdon answered a number of your questions after his presentation, Smile! You’re on Not So Candid Camera. Here are just a few of his responses.
Audience Question: How does this tie in with HIPAA?
Rick Hodsdon: That’s an interesting question. We had an officer in Minnesota a couple of years ago who was responding to a medical call. The person was being hauled out on a gurney and somebody was standing across the street videoing the entire event. This officer decided he was going to and did arrest the person taking the video on the grounds that the person violated, the subject’s HIPAA privacy rights. The answer is it doesn’t apply. HIPAA does not apply simply because something is medical information. HIPAA only applies to you if you are a medical provider, medical clearinghouse, or an insurance company. So even if medical events aren’t involving police officers, for the most part, are not HIPAA protected and even if you were a police paramedic, your personal recording of an event might have HIPAA coverage, but a third party, seeing it out in the street as you are giving CPR or first aid there is nothing to do with HIPAA. So, HIPAA is irrelevant to this whole discussion.
Audience Question: What are the issues with law enforcement using ring camera video?
Rick Hodsdon: Well, again, law enforcement, using the video is a little bit different topic than what we were talking about primarily today. Law enforcement has the ability to use video from whatever source, as long as it’s otherwise lawfully obtained, weather station, a pole camera, whether it’s body cameras, squad video, or some citizens says, “Here, I’ve got the whole event on my smartphone. Here you go, officer.” We’re still back to the question, is, is the officer or is the video taken in a public place where someone has a right to be? That’s the constitutional answer. There may be state statutory provisions. You have to look at this state by state. So, for example, on constitutional provisions, drone footage, oh, flying over public space, the Supreme Court has ruled on three occasions there is no Fourth Amendment implication as long as it’s open airspace, but a number of states, now, as I mentioned, mine included in Minnesota, have by a matter of state statute or potentially state constitutional provisions, put additional restrictions on law enforcement use of cameras.
Audience Question: Why is it okay to video without permission? But you must get consent to record a voice call. What’s the difference?
Rick Hodsdon: Well, actually, you don’t, unless you’re a two-party consent state. And under Title III under federal law, you don’t need two-party consent. About 41 states, some states, like Maryland, are a two-party consent states when they have to get, and you would have to get permission. Now, part of, from a Constitutional standpoint, it may depend as well as to why you’re making the call. So, for example, under the Fair Debt Collection Act, there may be statutory requirements that exist. But, from a constitutional standpoint unless you’re one of those small number of states you are not required to inform the other party they are being recorded. You don’t have to get consent to record a phone call. Just like you don’t have to consent to wear a body wire. I walk into a meeting with a drug dealer. I don’t have to tell I’m an undercover narcotics officer. Under federal law and in most states I don’t have to say, Oh, by the way, I’m wearing a body wire while we do this deal, is that okay with you? I could just do it.
Audience Question: What are some of the privacy rights or expectations of victims on body-worn camera videos where they may have, and I’m emphasizing the word “may”, they may have a reasonable expectation of privacy, I’m thinking of, especially our domestic violence victims, sexual assault victims. But the video is of public interest or concern, involves, or could involve the performance of officers in the course of their duties.
Rick Hodsdon: A lot of those are going to be dependent on a couple of factors, from a constitutional standpoint, like I always go back to, if we’re talking about an officer being somewhere, wearing a body camera, having it on, the fundamental question from a constitutional standpoint, whether the officer has a legal right to be. Is there an exigent circumstance? Were they invited into the house? Are they executing a search warrant? And if the officer is where they have a legal right to be, then there are, even though it may be intrusive into privacy there are really no constitutional implications. The other factor that has to be taken into account or complicates for the constitutional implication is more and more states are adopting special statutes that may address privacy concerns for body-worn cameras. What is public or not public information? Either case investigation or after the case is over or while it is pending. So, you really have two levels. What is the Fourth Amendment analysis? That’s almost always is does the officer has a right to be where the video is being shot. In other words, if the officer could see it, constitutionally, there’s nothing to prevent the officer from recording what they’re seeing. And then the other question is are there statutory privacy provisions to be aware of?
Audience Question: What’s considered a public place when it comes to probation and parole officers? So, for example, if a supervised offender wanted to record their interaction with their PO while meeting in their office where the offender was invited to be there, does the probation officer have a reasonable expectation of privacy in this setting while doing their job?
Rick Hodsdon: Again, probably not in most states, because the probation office is a public place. The easy things are malls, parks, out in the street. If you’re talking about a private office, probation officer, even though it’s your private office, it is a government space. For the most part that means if a parolee or probationer wanted to surreptitiously record the conversation if you’re in one-party consent jurisdiction, they’re legally entitled to do that. So, everything I’ve said about cops on the street, assuming that you’re being recorded and everything you say, I would make the same suggestion to anybody who’s an investigator, probation officer, or court service officer. Anytime you’re meeting with a client, assume you we’re being recorded by them.
Audience Question: I think, a variation of what we just talked about, but can the public freely record a, quote, unquote, a regular public servant? Not of frontline facing, you know, Law Enforcement Officer, or Emergency Services Responder, but just, your regular old City Hall County clerk secretariat at City Hall, kind of person?
Rick Hodsdon: The short answer is, yes, The fact that you’re a uniformed officer out in the street doesn’t really take away your privacy rights compared to the person who I walk in and I’m going to pay for my dog license and I want to record surreptitiously or otherwise, and I want to record that encounter. For the most part, I’m legally entitled to do that. Again, assuming we’re not, we’re dealing with a two-party consent state. Even, and I want to emphasize, even though the two-party consent states, the argument being, you can’t record my voice without me knowing about it. That’s voice only when I have this whole time, I would distinguish between one party to party consent states, the visual part all goes down to, am I standing or I have a right to be? So, even, in the most extreme, two-party consent state, if the claim is made, I violated, made any violation of the law, it’s by recording your voice. So, if I want to record your image during that entire encounter, get my dog license, or paying my utility bill, or whatever, even in the most extreme two-party consent state, I’m entitled to video it.
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