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.
[Editor's note: Ken Kirschenbaum, Esq., has been a long-time advisor to the security industry and a contributor to Security Dealer. He joins SecurityInfoWatch.com to address pressing legal issues in the security business. This month's Q&A column addresses the ever-present concern over dummy cameras and, legally, what they mean in terms of liability exposure.]
In your experience is there any potential downside to a residential condominium recording video from "some" of their cameras but not all? We installed a DVR recorder at a property that just wanted to record video within their 3 elevators. The remaining 22 cameras are not recorded, and I'm just wondering if doing this has ever come back to hurt a property.
R.G. in Florida
The issue is how does dummy equipment mislead subscribers or other potential third parties into a false sense of security. A false sense of security relied upon by another who has a right to rely on that security may very well expose a party responsible for security. Thus a landlord in a building known to be dangerous who installs dummy CCTV in the laundry room to entice tenants to continue using the machines so that landlord can profit or comply with lease terms for services, may suffer consequences of liability if a tenant is injured and thought that the safety of that room was being monitored.
If you install dummy equipment, and I don't recommend it, you should be certain to specify that in the contract and installation specifications. Using a disclaimer notice is also a good idea since it will point out all the security the subscriber has elected not to get. Add the dummy equipment to that form.
In a previous discussion, I received a great deal of emails dealing with lawn signs for homes with no alarm systems. I think everyone agreed that it's not a good practice from a security point of view or a business point of view.
You want to be thought of as a professional; you need to act like one. I can't imagine a client coming to me, paying me, and telling me that it's alright for me to advise him of only half the information he needs, or to give him the wrong information. The same goes for you. Professional alarm installers don't sell alarm stickers instead of security systems, and they don't install dummy equipment. If the subscriber can't afford a system, then put a more modest system in place. And, if you do install dummy equipment, be very certain to spell it out in the contract.
However, in your situation, it could be that 3 of the total 25 cameras are recorded, and the other 22 are monitored only (but not recorded -- meaning they're not dummy cameras.
The best way to look at that scenario is to understand that cameras have two expectations. One is that they are monitored in real-time so that an incident can be stopped or minimized. The other is that cameras are recorded, so that they can provide identification and be introduced as evidence. The first expectation offers the most exposure for liability. This exposure is not certain by any means. It would depend on the crime factor in the area and the expectation of the owner of the property providing security. But if a cameras is real and is monitored, but not recorded, then there is very limited exposure for not recording because that is more of an after the fact issue which would not have prevented the incident and damages in the first instance.
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.