SIW "Legal Side" columnist Ken Kirschenbaum, Esq., is a New York-licensed lawyer practicing with Kirschenbaum & Kirschenbaum PC, a Long Island legal firm with a rich history of assisting clients in security and alarm-related matters.
There was an interesting story recently about a San Francisco man who was robbed at his ATM and asked his bank to show him the surveillance video of the incident. He was told that the videos are private property and are only released to police upon subpoena. No surprise there, really. (See full story)
Nonetheless, this is a question that could arise for monitoring companies, businesses using surveillance, and even installing dealers. To help us understand the issues, could you comment on the ownership of surveillance video, and about any liability that might arise from turning over surveillance video? Other questions that come to mind are:
1) Should companies willingly turn video over to police without a subpoena (simply as professional courtesy)? 2) What are the possible implications and liability issues if they showed surveillance video footage to crime victims? 3) Does it matter if the crime occurred off their property vs. on their property?
Video recording is not regulated like audio recording. There are federal statutes, plus statutes in most states that deal with audio recordings, but it's not so with video. Interestingly enough, there may be statutes or regulations regarding video of ATM sites in certain jurisdictions.
However, absent statutes dealing with the specific issue, the video recording is the property of the bank or the surveillance company providing the service if independent of the bank. The bank would have no obligation to provide the recording to anyone voluntarily, though as possible evidence of a crime, it would need to be available to law enforcement agencies, if so requested.
As to the question of whether to turn surveillance over without a subpoena, there is no real reason why the bank should insist on a formal subpoena or court order before providing the video footage to the appropriate law enforcement agency. Withholding or tampering with evidence of a crime is a crime in and of itself; the bank should turn it over.
I doubt that the bank has any exposure civilly turning over the video recording to law enforcement. First of all, video recording is likely not prohibited. As long as the bank isn't using the video for commercial purposes, such as commercial advertising, it does not violate privacy rights. Furthermore, there is no expectation of privacy when someone uses an ATM where video surveillance is known or expected to exist.
I can understand a bank not turning over the recording to its customer or someone other than law enforcement. What would be the justification or purpose? The bank would not be wrong in denying such assistance to a robbed customer who intended to engage in his own vigilante campaign.
Certainly there have been actions against banks for improper security at ATM sites, and in those cases, video surveillance would then be discoverable in those civil cases. A bank would be hard pressed to claim the tapes were confidential and the bank would probably turn the tapes over pursuant to subpoena rather than insist on a court order, which would not be hard to get in the course of the civil litigation.
I don't think my analysis makes any difference if the tape shows images on the ATM site or off the site on public or adjoining property. Again, it comes down to expectation of privacy and the use of the tapes. Civil rights laws prohibit anyone from using the name or image of others, as long as they are alive, for commercial purposes without permission. But that is not coming into play in this situation. Therefore, I think the tapes can be released certainly to law enforcement and probably to a crime victim, though release to the latter would be entirely voluntary and unnecessary.
In the standard contracts I?ve created, it does provide for the issue of who owns the video and the audio recordings. As I have it phrased, the contracts provide that it is the central station which owns the recordings since it is the central station that receives the data and stores it on its equipment. By contract this, of course, could be changed.
About the author: Ken Kirschenbaum, Esq., is a New York-licensed lawyer practicing with Kirschenbaum & Kirschenbaum PC, a Long Island legal firm with a rich history of assisting clients in security and alarm related matters. Ken can be contacted via email at firstname.lastname@example.org. His website, www.kirschenbaumesq.com, features a great supply of legal information and court rulings relevant to the security industry. You can also sign up for Ken's discussion list from his homepage.