Walking the line of reasonable expectations.
Editor’s Note: This article does not constitute legal advice. You should consult an attorney if the article raises any issues for which you’d like legal services.
Nearly a century has elapsed since the United States started to accomplish the feat of putting a phone in every home. Today, we find ourselves in a world in which a phone inside the home is seen as a thing of the past. Why? Because we all have a phone on our person every waking moment of every day. However, these phones not only provide connectivity, but also give us high-resolution cameras at our fingertips so we can capture images or video during every moment of our lives. And, they give us microphones to provide a soundscape of how we proceed through our world. With each new phone, all these technologies improve. The microphone technology becomes clearer, and the cameras and image sensors become more powerful.
One wonders the point at which technology and service providers have to look at what a client is asking for and suggest that the client might want to talk to its corporate attorneys.
Now that we have these powerful devices on us at all times, there are those who have argued that the obligation to do anything about surveillance using external cameras or microphones is irrelevant. After all, our phones are listening to us at all times, right? Although possibly true, that has no bearing on any duty or obligation you might have as a technology or service provider. What’s more, it’s a nonsensical argument.
Your duty to your client is dependent on the contract you’ve signed with that client. Sometimes, that means you have to consider what’s being asked of you and relate it to the applicable local, state or federal codes. For example, would the location of a touchpanel violate the Americans with Disabilities Act (ADA) because the client wants it mounted 60 inches above finished floor? You’d likely have to inform the client of ADA requirements and either change the design or provide an alternative that assures accessibility. Perhaps, for some reason, the client does not want the audio system to be muted when the fire alarm sounds. You might have to inform the client that the state building code requires it be muted.
What about if the client asks you to design a conference-room system whose microphones and cameras will be on at all times, and whose feeds can be actively monitored and recorded by staff? What is your obligation in that instance? In criminal cases, this would have privacy implications under the Fourth Amendment. The Supreme Court has interpreted an individual’s right to privacy under the Fourth Amendment to be centered on a reasonable person’s expectations.
As an example, if someone were to install a camera on the outside of his or her home that could see inside your house, and if law enforcement were to attempt to use that footage against you, would that transgress a reasonable expectation of privacy because you were in your home? Suppose, on the other hand, the video that law enforcement wanted was of something you were doing in your front yard. Do you have the same reasonable expectation of privacy when you’re in front of your house, completely in public view?
Of course, the Fourth Amendment only applies if the government is attempting to use those recordings. So, what about the corporate client mentioned earlier—the one that wants to listen in on and watch what’s occurring in conference rooms? Is there a reasonable expectation of privacy inside a privately owned corporate building? What if that building has publicly accessible spaces? Would there be a reasonable expectation of privacy in any of these locations?
Admittedly, it’s unreasonable to expect that you—a provider of technology services and products—would know exactly when the “reasonable expectation” threshold described by the Supreme Court has been crossed. However, even acknowledging that, you should be mindful of the consideration. You, as a professional technology expert, bear responsibility for the systems you provide; you must ensure they comply with local, state and federal law. If a question arises as regards whether the “reasonable expectation” threshold could be breached, you can warn your client about your concerns and caution the client to consult legal counsel. You can also check in with your own legal counsel, if available.
We must be mindful that, although we’re providing technology solutions and features for our clients, there is potential for great harm in how our products can be used. For example, a microphone being monitored in the room means that translation services can be provided without the speaker being local, and, therefore, potentially distracting to participants. It also means, however, that someone not under a nondisclosure agreement (NDA) or employment contract can potentially hear proprietary information not meant for public consumption. Then, hypothetically, that person could share it on social media.
Perhaps that’s too clear-cut of an example, so let’s muddy the waters. Maybe the room being remotely monitored is a space in which two executives—one internal and one external—are meeting to discuss a future partnership. Suppose your client informs you that it wants no equipment in the room to provide notification that the room is being recorded. What is your obligation there? Depending on local and state laws, there might be no legal obligation to dictate your duties. It might only be an ethical duty to ask the question. However, this is one area in which it’s never a bad idea to exercise caution and suggest your client speak to an attorney.
The preceding discussion has only covered the very narrowest of circumstances. Our industry is constantly expanding the materials we manage. Considerations of this sort are increasingly going to come into play as we become more responsible for tracking data like which systems are being used, who was using them and when they were doing so. All that information could be part of a potential lawsuit, and it could be requested during the discovery phase of a trial. How you manage and protect that data could be vital.
Formerly, industry obligations under the law might have been limited to code compliance, but that is going to expand alongside the technology that we offer. Knowing when to look for legal assistance could greatly help in protecting you when these nuanced scenarios land at your feet.
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