As video surveillance technology becomes more advanced, it is becoming increasingly imperative for the state of California to pass laws regulating its use. Given the current political climate, people's right to privacy is under more pressure now than at any time in our country's history. The use of video surveillance in California is coming under increasing scrutiny as more and more people are beginning to realize the dangers such a system poses to privacy. In this article, we will cover recently enacted laws for the workplace and homes of California citizens.
Military-Grade Surveillance Equipment
In 2019 and 2021 California Governor Gavin Newsom signed two bills that placed new restrictions on military-grade surveillance equipment used by local and state law enforcement agencies. These new laws are a response to increased concern from the public about the potential for abuse of this type of equipment.
The first bill, AB 481, requires law enforcement agencies to obtain approval from their city councils or county boards of supervisors before acquiring any surveillance equipment funded by state or federal grants. Agencies must obtain consent before the acceptance of the grant funding. The bill requires law enforcement agencies to notify the public when they seek approval to acquire surveillance equipment. This notice must include a date and time for the hearing, a description of the proposed equipment, the source of funding, and explain future usage.
California AB 1215 places strict limitations on facial recognition technology by law enforcement agencies in California. Under the bill, law enforcement agencies are prohibited from using facial recognition technology with body cameras or any other type of video footage unless they have obtained a warrant authorizing such technology. Additionally, the bill requires law enforcement agencies to develop policies governing facial recognition technology consistent with state and federal laws regarding civil liberties and privacy rights. These policies also must be made available to the public upon request.
Workplace Surveillance Cameras
If you work in California, you may have noticed an increase in workplace surveillance cameras in recent years. With more and more employees working remotely, companies have had to find new ways to keep track of employee productivity. Texts, emails, phone calls, GPS tracking, and surveillance of social media activity have become commonplace. As a result, a new bill passed the state legislature and went into effect on April 18, 2022. It intends to protect worker privacy rights and impose strict requirements on employers who wish to install and use workplace surveillance cameras.
The new law, California Assembly Bill 1651, applies to all employers in the state, regardless of size. It prohibits employers from using video cameras to record conversations or activities in designated areas where employees have a reasonable expectation of privacy, such as restrooms and locker rooms. In addition, the law requires employers to post signs informing employees that they are in areas where video surveillance is taking place. Employers who violate the law may be subject to civil penalties, including fines of $5,000 up to $20,000 for each violation. The law also gives employees the right to sue their employer for damages in the case of privacy rights violations.
Sanders v. American Broadcasting Cos.
Prior decisions in Sanders v. American Broadcasting Cos. (1999) 20 Cal.4th 907 explain that “while privacy expectations may diminish significantly in the workplace, in the workplace, they are not lacking altogether.” The Court discussed the factors from Sanders that led to the Court’s conclusion that a privacy claim had been stated there: (1) “the identity of the intruder”; (2) “the nature of the intrusion … meaning, both the extent to which the subject interaction could be ‘seen and overheard’ and the ‘means of intrusion’”; (3) “the physical layout of the area intruded upon, its relationship to the workplace as a whole, and the nature of the activities commonly performed in such places”; and (4) “the ‘means of intrusion.’”
Productivity Quotas & Data Surveillance
The State of California has always been a leader in worker protection, and a new bill signed into law by Governor Gavin Newsom continues that trend. Assembly Bill 701, which went into effect on September 22, 2021, limits an employer's ability to set productivity quotas and collect employee data. Under the new law, an employer cannot implement a productivity quota unless it is "based on a bona fide business purpose." However, if there is a legitimate business reason, such as ensuring quality control or meeting customer demands, productivity quotas are legal.
In addition, an employer cannot use employee data to assess productivity unless the data is necessary for a legitimate business purpose. In its current state, this law will have a significant impact on how employers in California do business. For one, it will limit an employer's ability to set unrealistic or arbitrary productivity goals. In addition, it will protect employees from having their data collected and used to evaluate their performance unfairly.
According to the bill, raising productivity quotas to cover the minimum wage increase unfairly affects compensation. And without protection, employees are prevented from receiving the full benefit of state and local minimum wages. AB 701 addresses these perceived wrongs by placing several restrictions on quotas in California warehouse distribution centers.
Eavesdropping & Wiretapping Laws
The California Legislature recently amended two statutes that significantly affect the law surrounding eavesdropping and wiretapping. California Penal Code Section 631, as of January 1, 2023, will address the issues of tracking technology. Since the release of session replay technology, plaintiff firms have been steadily filing lawsuits over so-called session replays. These recordings track consumers' interactions with websites, such as keystrokes, clicks, and other online activities as they browse through web pages or carry out various tasks on their desktop computers.
With the uptick in filings, it's wise to use a reputable service such as BillTrack50 to look for interesting new legislation across the country. While it has long been a crime to secretly record or listen to conversations between two or more people in a private setting without the consent of all parties to the conversation, this stature will also address the issue of data collection soon. For clarity, here are the definitions and requirements for these statutes:
What is Eavesdropping?
Eavesdropping is secretly listening to another conversation without that party's consent. To be convicted of eavesdropping under Penal Code 632 PC, the prosecution must prove that:
- You intentionally overheard or recorded a confidential communication; AND
- The conversation was private without your participation; AND
- You had no lawful reason for overhearing or recording the conversation
Under California law, confidential communication is one where at least one participant has an objectively reasonable expectation that no one else is listening in or recording the conversation. It usually means that the communication takes place in a private setting, like a home or office, but applies to public interactions if the participants take steps to keep others from overhearing them (like speaking in a whisper).
What is Wiretapping?
Wiretapping is similar to eavesdropping but covers more than secretly listening in on a conversation. It also involves secretly recording. To be convicted of wiretapping under Penal Code 631 PC, the prosecution must prove that:
- You intentionally used an electronic device to overhear or record a confidential communication; AND
- The conversation was private without your participation; AND
- You had no lawful reason for using the device to overhear or record the conversation.
An electronic device can include cell phones, laptops, cameras, microphones, and more. So long as the device can capture sound waves, it qualifies as an electronic listening device under this statute. If you have questions about whether your actions may constitute eavesdropping or wiretapping, please do not hesitate to contact an experienced criminal defense attorney in your area for guidance.
Digital License Plates
Last month, California Governor Gavin Newsom signed into law a bill, AB984, that will allow the state to test out digital license plates. Under the new law, up to 5,000 vehicles will test digital license plates during a one-year pilot program. If the program is successful, it could eventually expand to all of California's 40 million registered vehicles. So, what exactly are digital license plates? Essentially, they are screens that display the same information found on a traditional license plate, such as the vehicle's registration number and expiration date. But because they're digital, they can also provide other information—for example, Amber Alerts or messages from the Department of Motor Vehicles.
Arguments For and Against Digital License Plates
There are several arguments for why California should implement digital license plates. First and foremost, they have the potential to generate revenue for the state. For instance, advertisers would be willing to pay to display messages on digital screens. In addition, because digital license plates can use GPS tracking devices, they offer a way for authorities to locate stolen vehicles quickly.
The GPS tracking feature is also one of the primary arguments against digital license plates. Privacy advocates argue that it would allow the government to track people's movements and conduct surveillance on them without their knowledge or consent. Another concern is that hackers could access GPS data and use it for nefarious purposes. Additionally, some believe that having screens on cars will create even more distractions for drivers who are already susceptible to accidents because of smartphones.
As you can see, California has some of the stronger video surveillance laws in the country. But, as video surveillance becomes more widespread and military-grade technology continues to collect ever-more sensitive data, it's crucial to consider the privacy implications of these tools. While video surveillance provides many benefits, especially in large cities, we must also be aware of the potential for abuse by government agencies and private companies. Thanks for reading!
Cover Photo by Lianhao Qu on Unsplash, other photos from pexels