Technology is supposed to make our lives more efficient, connected, and safer. Yet many new technologies have a darker side as well. The difficulty is deciding when our use of technology has crossed the line and invaded our cherished sense of privacy.
In Soliman v. The Kushner Companies, the New Jersey Appellate Division explored the contours of this brave, new world. In Soliman, the managers of a commercial office building received complaints from their tenants about vandalism and damage that rendered the bathroom facilities unusable. In response, the managers installed video surveillance equipment and concealed cameras inside the bathroom smoke detectors in effort to deter the vandalism and capture evidence against the alleged vandals. The managers claimed that the cameras were only focused on the wash basin areas and it was undisputed that the surveillance program was not made known to anyone entering the bathrooms through signage or otherwise.
A tenant’s employee discovered the monitoring operation when the employee opened a closet door that was inadvertently left ajar and found video monitors displaying live video feeds from the building’s four bathrooms. The police were called and the county prosecutor’s office investigated this discovery. Ultimately no criminal charges were filed related to the video surveillance operation.
Plaintiffs were employees of tenants and their families as well as others who had used the building’s bathrooms. They alleged that the defendants had invaded their privacy as well as intentionally or negligently inflicted emotional distress on them through the sub rosa video surveillance in the bathrooms.
The lower court seemingly accepted the building’s explanation that the monitoring was limited to the wash basin area and dismissed the case. On closer review, the Appellate Division reinstated the counts related to invasion of privacy and punitive damages. In short, the court concluded that “a rational jury could find that shielding the cameras from detection by placing them inside facially innocuous yet ubiquitous safety devices, such as smoke detectors, is more suggestive of a sinister voyeuristic purpose than a good faith attempt at combating vandalism.” A key factual point was the absence of any signs announcing that the area may be under video surveillance, thus undermining the defendants’ professed goal of deterrence and strengthening the plaintiffs’ claims that they had a reasonable expectation of privacy when using the bathroom.
Video surveillance is a powerful tool in the prevention and investigation of crime. However, bathrooms and other traditional areas of privacy are apparently poor venues in which to employ this intrusive tool.