Taped Recordings (Video) Part II/II: Dos & Don'ts

(For a variety of reasons, video recording becomes necessary at times. This week's video displays a new "stealth cam" that is often used in businesses or as a nanny cam. We do, however, caution people to become familiar with the laws in their state regarding such video taping.)

Last week, in Part 1 of our series on tape-recording rules and regs., we specifically covered audio taped conversations. This week, in the second and final part of Tape-Recordings, Dos and Don'ts, we focus on video taped recordings.


Generally, one may record, film, broadcast or amplify any conversation with all of the parties' consent. It is always legal to tape or film a face-to-face interview when your camera is in plain view. The consent of all parties is presumed in these instances.

The use of hidden cameras is covered only by the wiretap and eavesdropping laws if the camera also records an audio track.

The exceptions:

Expectation of privacy.
A number of states have adopted laws specifically banning the use of video and still cameras where the subject has an expectation of privacy. Maryland's law on this matter, for example, bans the use of hidden cameras in bathrooms and dressing rooms.

Criminal purposes.
Federal law explicitly does not protect the taping if it is done for a criminal or tortious purpose. Many states have similar exceptions. Case: Employees of a "psychic hotline" who were secretly recorded by an undercover "Primetime" reporter sued ABC for violation of the federal wiretapping statute, arguing that the taping was done for the illegal purposes of invading the employees privacy. (Sussman v. American Broadcasting Co.)


Trespass.
A party whose conversation is recorded, with consent, may raise a claim of trespass and intrusion, if he or she was unaware of the true intent of the recording. For example, an undercover reporter, posing as a patient, leaves a reocrder in plain sight, during a medical visit. The doctor examining the "patient' is aware of the recording but is told it is for personal use (to better enable explanation of the "illness or medical findings" to family...). Had the doctor known the true intent of the reporter, to broadcast this recording, it may have casued him to revoke his consent.


Other consent issues.
Whether a recording device is in plain view may be an issue. A small camera protruding from a briefcase may not be enough to validate presumed consent by the party being taped.

It is always advisable for the investigative specialist to ensure his/her awareness of taping permissions in the state of operation.

BNI Investigators: Street Smart; Web Savvy.


Stay safe,

Lina

Finders Keepers: Securing Witness Contact Information

From an investigator's perspective, few things can be as frustrating as trying to locate a witness a year or more post-accident.

Having conducted innumerable first contact/initial intake surveys, it is our experience that it is critical to obtain as much information on potential witnesses as early on as possible. And. to then immediately reach out to those witnesses and obtain additional contact information. Often, the starting point of any file (once the retainer is secured) is the police accident report - PAR. (For the purpose of maintaining a tight focus, and as the information is applicable to other agencies and incident types as well, we will concentrate on police department PARs) A PAR's witness information content varies from agency to agency, county to county and even intra-department. An NYPD officer may be thorough and include the witness' name and address in the PAR's witness information section. A Yonkers cop may simply jot down the witness' name and address or phone number in the body of the accident description. Outside of the occasional NYPD officer or State Trooper, there is usually no witness identification verification conducted on scene.

In any case, your firm initially has only the PAR or any info that your client may provide regarding the witness(es). A simple phone call or contact letter within a week or so of accepting a case may not only secure contact information, it begins to establish an association between the witness and your client and can facilitate cooperation down the line.

Understandably, until the issues of accident/incident circumstances, injuries, liability and potential defendants are developed, a law firm may not wish to expend additional energy or monies on non-critical activity. Our experience, however, leans us towards an ounce of prevention when it comes to securing witness information. In an increasingly mobile/transient world, more information is not only better, but necessary. A phone call or contact letter requesting additional info (such as an emergency contact, email, employer info...) can often make the difference later on in obtaining a witness statement... or not. Done correctly, this witness outreach may a) induce the witness to become a more cooperative part of the process, b) begin to imprint a more solid recall of events should testimony become necessary and c) provide additional future contact avenues.

Sign By The X(box): Electronic Signatures & Witness Statements

In this week's issue of The Bulletin we review Web 2.0's definition and application of an electronic signature (to differentiate from a digital signature). To maximize efficiency and minimize turnaround time, today's investigator should be able to handily electronically record and transfer documents (i.e. witness statements, agency records, diagrams, photos...). Generally, the latter three items are simply point and click technology. The first, however, the witness statement - an important evidentiary and negotiation tool, particularly in personal injury matters, often carries enormous weight in the trial lawyer's case strategy. The third party eyewitness account of an incident can be the lynchpin in the successful resolution of a client matter. Requiring at least the witness' signature (and that of a notary public in a sworn statement), it is also the most difficult to electronically capture and transfer.

Below is the online encyclopedia, Wikipedia's, electronic signature definition (and distinction from a digital signature). Following that are my thoughts on viable integrated signature capture and text input technology.

Wikipedia - Electronic signature

The term electronic signature has several meanings. In recent US law, influenced by ABA committee white papers and the National Conference of Commissioners on Uniform State Laws (NCCUSL), electronic signature means "an electronic sound, symbol, or process, attached to or logically associated with a record and executed or adopted by a person with the intent to sign the record." This definition comes from the Uniform Electronic Transactions Act or "UETA" released by NCCUSL in 1999. [1] The U.S. ESign Act of 2000 [2] enacted on a federal level many of the core concepts of UETA. 46 US states, the District of Columbia, and the US Virgin Islands have enacted UETA. [3]

The concept itself is not new. US and other common law contains references to telegraph signatures and faxed signatures, some as far back as the mid-19th century. For that matter, the text of, and comments to, US Federal Rules of Evidence 1001, 1002, and 1003, among others, give good support for the proposition that electronic records and signatures would be admissible in court.

There is confusion between the terms electronic signature and digital signature. Most, especially those with an information theory or cryptography background, use "digital signature" to refer to a digital signature protocol using cryptographic techniques, as for an electronic document. Many, however, use the terms interchangeably, leading to considerable confusion as cryptographic signature techniques are very different, whatever the term used, than other electronic signatures and have extremely different security properties. Digital signature is properly a subset of electronic signature.

History and Examples of Use

Beginning well before the US Civil War (ca 1860), Morse code was used to electronically send messages via telegraph, some of which involved agreement to contracts. An early acceptance of the enforceable validity of electronic signatures of this kind came from the New Hampshire Supreme Court in 1869. But it was the invention of electronic communication methods which brought electronic signatures into everyday use.

In the 1980’s, many companies and even some progressive individuals began using fax machines for high priority or time sensitive delivery of paper based documents. Although a signature in such cases was typically on a piece of physical paper, the image capturing process and the transmission of a copy of the signature was done electronically.

Courts in various jurisdictions have decided that enforceable electronic signatures can include agreements made via email, by entering a person identification number "PIN" into an ATM bank machine, 'signing' a credit/debit slip with a digital pen pad device at a sales counter, acceptance of the terms of an End-User License Agreement via clickwrap when installing software, or by signing electronic documents online.

Legal definitions

Various laws have been passed internationally to facilitate commerce by the use of electronic records and signatures in interstate and foreign commerce. The intent is to ensure the validity and legal effect of contracts entered into electronically. For instance,

ESIGN Act Sec 106 definitions
(2) ELECTRONIC- The term `electronic' means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities.
(4) ELECTRONIC RECORD- The term `electronic record' means a contract or other record created, generated, sent, communicated, received, or stored by electronic means.
(5) ELECTRONIC SIGNATURE- The term `electronic signature' means an electronic sound, symbol, or process, attached to or logically associated with a contract or other record and executed or adopted by a person with the intent to sign the record.

End of Wikipedia definitions.

Having given the matter much thought, I think the best electronic signature capture/text input technology will be an integrated tablet/iPhone. (Side note re: iPhone: Naming it such was a rare marketing mistake by Apple, who, having recently settled the trademark infringement issue with Cisco, is certainly free to continue using, albeit ill-advisedly, the mark. Back on point. The iPhone's phone feature is its least useful and valuable capability. It is a portable pc; down to the full QWERTY keyboard feature - imagine not having to tap the number 7 phone button four times for the letter "S" anymore! - with camera/video recording, WLAN (wireless local area network) and IPTV (internet protocol tv). The tablet would be akin to that used by FedEx, UPS or DHL (none has offered advertising $$$ yet so I am not promoting any one company) which utilizes a stylus signature device. So, a combination device is a perfect in-the-field solution for today professional investigator. (I did briefly weigh bar coding and randomly generated unique number I. D. methods but neither seems to carry the definitiveness of a "signature".)

Until that technology is realized, we'll still keep handwriting the statements on triplicate form, single-spaced, lined paper.