Image result for secret surveillanceThe New York Times newly established Privacy Project, recently highlighted the extent to which our society has created a “facial recognition machine” – cameras are everywhere, even in doorbells. Segments of society have accepted widespread surveillance on public streets, shopping malls, and in common areas of office buildings, apartment complexes, schools and similar places. But there are limits.

Early this month, 131 patients (and counting) of a women’s hospital in San Diego, California filed a lawsuit against the hospital after discovering that there was secret video surveillance in three labor and delivery operating rooms, recording medical procedures without patients’ consent. Patients were recorded during Cesarean sections, birth complications, treatment after miscarriage, hysterectomies and other medical procedures from July of 2012 to July of 2013.   Approximately 1,800 patients were recorded during this period. The patients are suing the hospital for invasion of privacy, breach of fiduciary duty, negligence, negligent infliction of emotional distress and unlawful recording of confidential information.

In addition to not informing the patients of the hidden cameras, the lawsuit alleges that the hospital was “grossly negligent” in its storage of the recordings. The lawsuit claims that recordings were stored on employee computers, often without password protection and that the hospital “destroyed at least half the recordings but cannot say when or how it deleted those files and cannot confirm that it took the appropriate steps to ensure the files were not otherwise recoverable.”

This is not the first lawsuit against the hospital regarding the hidden cameras. Since 2016, the hospital has faced several lawsuits alleging privacy violations and other claims stemming from the video records.

The hospital said in a statement on April 4th to the San Diego community that the cameras were installed as part of an investigation regarding drugs and other equipment missing from several anesthesia carts in hospital operating rooms, and it was not intended for patients to be visible on the recordings, although ultimately that was the case.

The issue of hidden cameras is particularly common in elder care facilities, where for example family members secretly install a “granny cam”, to step in and help protect their elderly loved ones from abuse in the facility, including neglect, physical abuse, unexplained serious injuries and thefts. A study published in 2011 found that an estimated 260,000 (1 in 13) older adults in New York had been victims of one form of abuse or another during a 12-month period between 2008 and 2009, with “a dramatic gap” between elder abuse events reported and the number of cases referred to formal elder abuse services. Clearly, states are struggling to protect a vulnerable and growing group of residents from abuse. Technologies such as hidden cameras may help to address the problem, but their use raises privacy, security, compliance, and other concerns.

Whether installed by a concerned family member in a nursing home, or a medical professional or a hospital administrator, the use of video surveillance devices can pose a number of issues and potential risks, particularly when the devices are hidden and/or record audio as well as video. Here are just a few questions these devices raise:

  • Has the organization addressed federal and state laws establishing consent requirements when recording communications?
  • Are there state laws that specifically addresses hidden cameras or similar privacy rights? For “granny cams”, at least five states (Illinois, New Mexico, Oklahoma, Texas, and Washington) have laws specifically addressing the use of cameras in this context. While state “granny cam” laws are not applicable to the hospital case, in California, for example, the California Invasion of Privacy Act (CIPA) protects against recording of an individual’s confidential information without prior consent.
  • In general, if the organization installs such a device, what rights and obligations does it have with respect to the scope, notice, content, access, security, storage, deletion and other aspects of the recording?
  • For surveillance likely to capture protected health information, have the HIPAA privacy and security regulations been addressed? This includes assessing the risk of making the recordings, controlling access to the recording, and securing that information.
  • What record retention, chain of custody, and record destruction requirements and best practices should be implemented?
  • How do the features of the device, such as camera placement and zoom capabilities, affect the analysis of the issues raised above?

Facilities considering this technology, even when well intentioned, must assess the privacy and security implications. Practices and procedures considered and implemented, as applicable, not only for what happens prior to device installation (i.e. notice, consent, device placement, scope etc.), but also for what happens after recordings occur, including lawful and effective data storage and deletion policies.

Photo of Joseph J. Lazzarotti Joseph J. Lazzarotti

Joseph J. Lazzarotti is a Principal in the Morristown, New Jersey, office of Jackson Lewis P.C. He founded and currently leads the firm’s Privacy, e-Communication and Data Security Practice, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP) with…

Joseph J. Lazzarotti is a Principal in the Morristown, New Jersey, office of Jackson Lewis P.C. He founded and currently leads the firm’s Privacy, e-Communication and Data Security Practice, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP) with the International Association of Privacy Professionals. Trained as an employee benefits lawyer, focused on compliance, Mr. Lazzarotti also is a member of the firm’s Employee Benefits Practice Group.

In short, his practice focuses on the matrix of laws governing the privacy, security, and management of data, as well as the impact and regulation of social media. He also counsels companies on compliance, fiduciary, taxation, and administrative matters with respect to employee benefit plans.

Privacy and cybersecurity experience – Mr. Lazzarotti counsels multinational, national and regional companies in all industries on the broad array of laws, regulations, best practices, and preventive safeguards. The following are examples of areas of focus in his practice:

  • Advising health care providers, business associates, and group health plan sponsors concerning HIPAA/HITECH compliance, including risk assessments, policies and procedures, incident response plan development, vendor assessment and management programs, and training.
  • Coached hundreds of companies through the investigation, remediation, notification, and overall response to data breaches of all kinds – PHI, PII, payment card, etc.
  • Helping organizations address questions about the application, implementation, and overall compliance with European Union’s General Data Protection Regulation (GDPR) and, in particular, its implications in the U.S., together with preparing for the California Consumer Privacy Act.
  • Working with organizations to develop and implement video, audio, and data-driven monitoring and surveillance programs. For instance, in the transportation and related industries, Joe has worked with numerous clients on fleet management programs involving the use of telematics, dash-cams, event data recorders (EDR), and related technologies. He also has advised many clients in the use of biometrics including with regard to consent, data security, and retention issues under BIPA and other laws.
  • Assisting clients with growing state data security mandates to safeguard personal information, including steering clients through detailed risk assessments and converting those assessments into practical “best practice” risk management solutions, including written information security programs (WISPs). Related work includes compliance advice concerning FTC Act, Regulation S-P, GLBA, and New York Reg. 500.
  • Advising clients about best practices for electronic communications, including in social media, as well as when communicating under a “bring your own device” (BYOD) or “company owned personally enabled device” (COPE) environment.
  • Conducting various levels of privacy and data security training for executives and employees
  • Supports organizations through mergers, acquisitions, and reorganizations with regard to the handling of employee and customer data, and the safeguarding of that data during the transaction.
  • Representing organizations in matters involving inquiries into privacy and data security compliance before federal and state agencies including the HHS Office of Civil Rights, Federal Trade Commission, and various state Attorneys General.

Benefits counseling experience – Mr. Lazzarotti’s work in the benefits counseling area covers many areas of employee benefits law. Below are some examples of that work:

  • As part of the Firm’s Health Care Reform Team, he advises employers and plan sponsors regarding the establishment, administration and operation of fully insured and self-funded health and welfare plans to comply with ERISA, IRC, ACA/PPACA, HIPAA, COBRA, ADA, GINA, and other related laws.
  • Guiding clients through the selection of plan service providers, along with negotiating service agreements with vendors to address plan compliance and operations, while leveraging data security experience to ensure plan data is safeguarded.
  • Counsels plan sponsors on day-to-day compliance and administrative issues affecting plans.
  • Assists in the design and drafting of benefit plan documents, including severance and fringe benefit plans.
  • Advises plan sponsors concerning employee benefit plan operation, administration and correcting errors in operation.

Mr. Lazzarotti speaks and writes regularly on current employee benefits and data privacy and cybersecurity topics and his work has been published in leading business and legal journals and media outlets, such as The Washington Post, Inside Counsel, Bloomberg, The National Law Journal, Financial Times, Business Insurance, HR Magazine and NPR, as well as the ABA Journal, The American Lawyer, Law360, Bender’s Labor and Employment Bulletin, the Australian Privacy Law Bulletin and the Privacy, and Data Security Law Journal.

Mr. Lazzarotti served as a judicial law clerk for the Honorable Laura Denvir Stith on the Missouri Court of Appeals.