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Nelson v. Salem State College

Employee Privacy in the State Workplace

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In June of 1995, officers of the Salem State College police force, with the knowledge of college administrators, installed a hidden video camera and VCR in the college’s off-campus Small Business Development Center. The video camera was used to investigate possible illegal entries in the center after normal business hours and was set to record twenty-four hours a day. The camera taped a view of the entire length of the office, including private areas shielded by partitions. The videotaping continued for the next two to four months until it was discovered by one of the center's employees.

During the summer of 1995, Gail Nelson, a secretary at the Small Business Development Center, often brought a change of clothes to work and changed in a cubicle. She did this either in the morning, before anyone else was in the office, or after work, when everyone had left. She also applied a prescription medicine to her chest and shoulders to treat a case of sunburn. These activities were documented by the hidden camera. Ms. Nelson later learned about the covert surveillance from a co-worker.

Ms. Nelson filed suit against the college and officials, arguing that they had violated the Fourth Amendment, Article 14 of the Massachusetts Declaration of Rights, and state law by secretly videotaping her in a cubicle. She argued that the school invaded her right to privacy and failed to train its employees in the proper use of covert surveillance as an investigative technique. The claims were dismissed by the trial court, which found that the Ms. Nelson had no reasonable expectation of privacy in a cubicle.

One issue in this case is whether the Fourth Amendment and Article 14 of the Massachusetts Declaration of Rights protect a state employee, while in her cubicle, from covert and secret video surveillance, and whether that right was clearly established in this situation.  A second issue is whether a state agency’s failure to train and supervise its employees in the proper use of covert surveillance was a “discretionary function” of the agency so as to make the agency immune from liability for that failure.

After the trial court dismissed Ms. Nelson’s claims, she appealed to the Massachusetts Appeals Court. Before the court reached a decision, the Supreme Judicial Court decided to take the case. The court held in April 2006 that the college's surveillance did not violate Ms. Nelson's constitutional rights.

EPIC's Interest

Covert surveillance offends society’s expectation that individuals are entitled to some privacy in the workplace. In the face of exponential growth in public surveillance, freedom from video cameras in closed, intimate spaces is an expectation of privacy that society is prepared to recognize as reasonable. Where one chooses to undress provides a good indication not only of a subjective expectation of privacy but also of an objective expectation that is shared by others.

The passage of anti-voyeurism laws throughout the country further shows that society recognizes some expectation of privacy in public places. In such locations, the use of video surveillance must be regulated by law.

People must have a reasonable expectation of privacy from surveillance cameras, because otherwise society has virtually no reasonable expectation of privacy beyond the home. Developing surveillance technologies such as backscatter x-ray and face recognition threaten to undermine our privacy in new and chilling ways.

State Employees Must be Trained in the Use of Video Cameras Because of the Well-Established Potential for Abuse of Covert Video Surveillance. Video surveillance is easily and frequently abused in ways that cause substantial harm to social values and human dignity. Misuse of video surveillance can include racial and sexual discrimination and stereotyping, as well as sexual voyeurism. Video surveillance can also chill political protest and other forms of protected speech. In fact, documents obtained by EPIC under the Freedom of Information Act have shown that the Park Police conducted surveillance of political protesters in Washington, DC.

Furthermore, unlike one person observing another, video surveillance cameras can zoom in on a subject, record images, match images against a database of images, and even obtain outlines of the human body that would be otherwise concealed beneath clothing. Digital images are also easily copied and distributed online.

Video surveillance is an invasive technology that requires oversight and regulation. State agencies should not be permitted to use such powerful technology indiscriminately.

EPIC Recommends the Use of Best Practices in Video Surveillance. When video surveillance is used, the law must require that users are well trained and carefully supervised so that the opportunity to conduct a covert, visual search of a person does not become an excuse for state-sanctioned voyeurism.

The Government Accountability Office has recommended (pdf) best practices for video surveillance including 1.) public notification and discussion about surveillance, 2.) posting of signage at surveilled areas, 3.) standards for the handling and use of video data, 4.) regulations governing law enforcement use of the data, and 5.) regular auditing of camera operators to ensure that the video cameras are not used for illicit purposes.

The American Bar Association, the International Association of Chiefs of Police, and the Security Industry Association, and state and federal courts have also proposed guidelines to regulate and mitigate the invasive nature of video surveillance.

Legal Documents

Massachusetts Supreme Judicial Court

Superior Court

News Articles

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Last Updated: May 4, 2006
Page URL: http://www.epic.org/privacy/nelson/default.html