Surveillance for risk management: What is acceptable?

In the pandemic era of social distancing and remote work, video surveillance has been a game-changer in managing risks — and that likely will not change post-COVID.

At a recent RIMS Live 2021 session, Seymour Everett, partner at Everett Dorey LLP, and Caryn Siebert, vice president and director of carrier engagement at Gallagher Bassett, discussed how surveillance cameras have become critical risk management tools during the coronavirus crisis.

“We have seen the pandemic act as a catalyst to reliance upon surveillance video to help us manage risk, and we’ve seen it in the public sector and also the private sector, primarily because we have not been able to be present at locations,” said Everett. “So we’ve had to rely upon video and surveillance. As a result of that, we’ve seen some really great developments in the use of video surveillance cameras; it has really permeated our society,”

Where is surveillance legal?

During the “Big Brother is Watching: Surveillance Cameras to Manage Risk, Protect Property and Defend Litigation in the Era of COVID-19″ session, Everett and Seibert talked about the key things risk professionals should know about surveillance for their clients, including its legalities.

According to Everett, companies may install surveillance cameras at any location where there is no reasonable expectation of privacy. “That means any public area,” he said, adding that companies must ask themselves if individuals possess a reasonable expectation not to be filmed or watched in public before installing devices.

Common areas within offices also are acceptable locations for video surveillance; however,  companies shouldn’t install surveillance cameras within personal offices, where there is a reasonable expectation of privacy, Everett noted.

When using video surveillance, companies must consider whether the systems also capture sound, which could raise privacy concerns: “There is an expectation of privacy when it comes to audio recordings,” said Everett.

For risk managers and insurance professionals working with companies to mitigate risks through surveillance, Seibert recommends a walk-through of the property with a focus on areas of egress and ingress and lighting to know where video devices should be installed. Some common areas Seibert lists where companies can install devices at a commercial property include entrances and exits, parking lots, common areas, high traffic areas and pools.

Pros and cons of video

First and foremost, the most significant benefit of video surveillance is its effectiveness in deterring crime. It has also been an effective tool to defend and mitigate civil litigation, provide evidence of what happened at a certain time and place, create a sense of safety and provide for accountability.

However, video can also be used to incriminate companies and public entities, such as a city, county or police department, said Seibert. Despite this, she asserted that having video evidence is preferred — regardless if it is good or bad.

“It is better to know that upfront because someone else may have a picture of [an event] or a witness, and if you have nothing, then you really have no defense,” Seibert explained.

Video surveillance has also been known to create a chilling effect, which, in a legal context, means the inhibition or discouragement of natural and legal behavior out of fear of punishment.

“You don’t want your corporate security guard or police department or someone at a shopping mall to engage in other conduct because they are afraid of being prosecuted or afraid that they will be accused of something because it is going to be on camera,” said Seibert.

Other disadvantages of surveillance that Seibert noted include privacy violation issues, a false sense of security, vulnerability to abuse and retention of evidence issues.

Notwithstanding the many concerns surrounding the use of video surveillance, it will only become more prevalent as technologies advance and companies continue to strengthen risk management practices.

“We have to accept both the pros and cons that surveillance is here to stay, and it is going to be everywhere,” said Everett. “The challenge from a risk management and legal perspective is ‘how do we most effectively use it?’ We are not going to fight it, and we are going to embrace it effectively. And it’s the very first question I ask clients when they present me with a loss and when I prepare to defend the case: ‘do we have video?’”

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