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December 12, 2000

 Superintendent James F. Shoemake
Tacoma School District
601 S. 8th St.
PO Box 1357
Tacoma, WA  98401-1357

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.

Facts
According to documents provided to us by Jefferson Elementary School, the facts are as follows.  Student prescription drugs are kept in a locked cabinet in the nurse's station, and only a few people have keys and authority to give medications to students.  In May 2000, it was discovered that some medication was missing, presumed stolen.  School staff did not change the lock or ask the police to investigate the crime.  Instead, staff installed a hidden camera behind an eye chart that recorded an uninterrupted videotape of each day's activities in the room.  Based on a sample video that was given to us, the camera swept across the nurse's station to the medicine cabinet on the opposite wall, and would pick up any person doing anything in the center of the room, and included a portion of the bed.  No notice was provided to staff or students that their actions in the nurse's station were being observed or recorded.  The hidden camera was removed during the summer, evidently without ever having recorded any incident of theft.

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.

Discussion
When the school suspected that a crime had been committed, it should have called the police.  This is true for a number of reasons.  Operating a school is a full-time job (or more!) without also undertaking detective work.  Police have experience and training in investigative techniques.  Most important for purposes of our discussion here, police receive instruction and training regarding the legal and constitutional limits on governmental searches.  The method of investigation chosen by Jefferson officials in this case violated a number of these laws.

Constitutional protection from unreasonable search and seizure
The Washington Court of Appeals recently reminded schools that they are bound by the federal and state constitutions as regards 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 law forbids strip searches of students, RCW 28A.600.230(3), which is defined as "having a person remove or arrange some or all of his or her clothing so as to permit an inspection of the genitals, buttocks, anus, or undergarments of the person or breasts of a female person."  RCW 10.79.070(1).  While it was not the intent of the Jefferson staff to film these parts of the body or undergarments, the video camera in this location was the functional equivalent of a forbidden strip search.

Washington Privacy Act
As the Tacoma Education Association explained, state statute forbids the unconsented interception or recording of a private conversation.  RCW 9.73.030.  Even with the microphone disconnected, however, the use of a hidden camera violates the spirit of the Privacy Act.  In addition to forswearing further unconsented audio recordings, the District should also forswear hidden videotaping.

Interference with medical privilege
Communications between patients and health care providers are privileged by law.  A recording device in an examination room intrudes upon this specially protected relationship.  The videotape records which patients take which medications, information that is also to be kept in confidence. 

Inconsistency with School Policies
Elsewhere in its officially adopted policies, the District recognizes that searches are intrusive and should not be undertaken surreptitiously.  For example, Policy 6510 requires notice to students and staff that metal detectors may be used, and also requires that metal detectors or other search technologies be used only in the least intrusive manner.  A hidden camera is far more intrusive than a readily visible one for which notice of filming is provided.

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.

Conclusion
For all of these reasons, we believe that the District needs to take decisive action to rectify the misstep at Jefferson Elementary. 

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.

Sincerely,

//s//                              
AARON H. CAPLAN
Staff Attorney 


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