December 12, 2000
Superintendent James F. Shoemake
Re: Use of Hidden Cameras
Dear Dr. Shoemake:
The administration of Jefferson Elementary School, with the approval of the Tacoma School District, installed a hidden video camera in the nurse's station in an effort to learn the identity of a suspected medicine thief. A secret camera in a health care setting is a severe intrusion on personal privacy, because the camera records people undressing, consulting with nurses or doctors in what should be a privileged setting, or taking their medications. The camera recorded the actions of any number of innocent parties without their knowledge or consent, including both teachers and students. The invasion of privacy that occurred here violates state and federal law for a number of different reasons. The ACLU asks the District to take appropriate steps to redress the problem.
In the fall of 2000, pills again began to disappear. Again, the school did not contact the police but instead reinstalled the hidden camera in late September. Some of these tapes included audio as well as video. A staff member discovered the camera in early October, and school administrators removed the camera following the staff complaint. As before, the camera did not record any thefts.
Leon Horne of the Tacoma Education Association sent a letter dated October 6 to Superintendent Shoemake complaining that the audio recording violated the Washington Privacy Act, RCW 9.73.030. Dr. Shoemake replied on October 9 pledging to abide by the Privacy Act as it related to audio recordings, but made no similar commitment regarding video recordings.
Constitutional protection from
unreasonable search and seizure
The Fourth Amendment to the U.S. Constitution and the Washington Constitution, article I, section 7, protect people from unreasonable searches and seizures and invasions of privacy. In New Jersey v. T.L.O., the United States Supreme Court held that school authorities may conduct a warrantless search of a student without probable cause if the search is reasonable under all the circumstances. A search is reasonable if it is: (1) justified at its inception; and (2) reasonably related in scope to the circumstances that justified the interference in the first place. A search is justified at its inception only when there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school.
State v. B.A.S., 2000 Wash. App. LEXIS 2409 (Nov. 27, 2000) (footnotes omitted). School officials are constitutionally forbidden from searching students or their belongings without individualized suspicion that the particular student searched violated school rules and that the search will uncover evidence of that violation. Kuehn v. Renton School District, 103 Wn.2d 594 (1985).
Video surveillance of a private area where people confide with their health care providers and undress for examinations is unquestionably a search. The visual search in this case swept up not only the persons for whom the school might have had individualized suspicion, but also all other staff, students, or visitors who entered the nurse's station. The search was not reasonably limited in scope, and thus unconstitutional.
The ACLU strongly doubts that the Tacoma Police Department would have used the hidden camera as a method of investigation, and even stronger doubts that a court would have issued a warrant allowing it to happen. Unfortunately, the District pursued the search without a warrant and, it appears, without considering the need for one.
Torts of Invasion of Privacy and Emotional Distress
Invasion of privacy is a tort in Washington.
One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.
Mark v. Seattle Times, 96 Wn.2d 473, 497 (1981) quoting Restatement (Second)of Torts � 652B (1977). We have no doubt that surreptitious videotaping of unsuspecting staff and schoolchildren in a situation where they may disrobe for medical examinations is conduct that reasonable people in our state would consider a highly offensive intrusion.
The camera at Jefferson was placed in precisely the type of location that the state's criminal voyeurism statute defines as "a place where [one] would have a reasonable expectation of privacy":
(i) A place where a reasonable person would believe that he or she could disrobe in privacy, without being concerned that his or her undressing was being photographed or filmed by another; or
(ii) A place where one may reasonably expect to be safe from casual or hostile intrusion or surveillance.
RCW 9A.44.115(1)(b). Given the similarity to voyeurism, a jury might find that placing a hidden camera in this location constituted the torts of outrage or negligent infliction of emotional distress. Reid v. Pierce County, 136 Wn.2d 195 (1998) (misuse of medical information can constitute outrage).
Law Against Strip Searches
Washington Privacy Act
Interference with medical privilege
Inconsistency with School Policies
Policy 6608 purports to authorize video surveillance cameras, but it appears to deal only with school busses: it is recorded in the section of the policy guide dealing with transportation and the only specific examples it contains involve transportation. The policy nowhere says that it authorizes hidden cameras. Indeed, a hidden camera would not further the stated purpose of "deterring and reducing vandalism, break ins and discipline problems," because wrongdoers would not know they were being observed. Of course, even if Policy #6608 purported to allow hidden cameras, it would be overridden by the constitution and other laws.
The District should provide the ACLU with immediate written assurances that it will cease use of all hidden video cameras or other hidden recording devices.
The District should dispose of any hidden or secret cameras or other surreptitious recording devices that it owns.
The District should adopt formal policy, either as an amendment to Policy 6608 or otherwise, that surveillance by hidden cameras will not occur. Surveillance cameras of any sort should be used only when other less intrusive alternatives have been exhausted. Plainly visible notice of the cameras must be provided in any areas where cameras are used.
The employees responsible for the hidden camera should be held accountable for their actions.
The ACLU recognizes that the theft of students' medication is serious business, and we agree that the staff at Jefferson needed to take immediate action upon discovering the problem. However, the action taken in this case was an unreasonable and unlawful invasion of privacy of entirely innocent students and staff. The action was also ineffective at catching the thief.
I look forward to the District's prompt response.
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