Surveillance: What's an Intrusion?
With litigation, private investigators, Google Alerts, and social media monitoring are common devices by which to uncover facts and evidence. For law enforcement, additional tools such as facial recognition software are sometimes available. But with the electronic surveillance easy to implement and operate, U.S. Courts are on guard to prevent “anti-Orwellian” tactics.
In September 2021, a former vehicle accident plaintiff filed suit against a very well-known and prestigious national law firm, Baker Donelson, and its client for unlawful surveillance, claiming billions in damages. While the defendants sought dismissal alleging that the suit was retaliation for an unsuccessful appeal and that all investigatory tactics were acceptable, the Dekalb County, State of Georgia Judge in Luisa Cruz Mezquital v. American Family Insurance Company, et al, Civil Action File No. 21A03213, advised that the unlawful surveillance claims present merit sufficient to warrant trial.
Plaintiff Luisa Cruz Mezquital (“Mezquital”) filed suit against American Family Insurance Company (“AmFam”) as the insurer of a driver involved in a 2012 vehicle accident. In the 2014 trial, Mezquital was awarded $30 million for the accident, which was reversed in 2018 on appeal. Baker Donelson represented AmFam.
The same case was retried in November 2019, which later settled. Prior to the settlement, private investigators hired by Baker Donelson and AmFam produced images of Mezquital taken while she was on her private property through a hidden camera placed just outside of her home to contradict Mezquital’s injury claims. It was also discovered that the private investigator placed a tracking device on Mezquital’s vehicle.
Mezquital claims that these acts constituted a conspiracy to unlawfully trespass on her property, violate her privacy rights, and emotionally abuse her. Baker Donelson and AmFam alleged these surveillance actions constituted normal litigation practices.
The Court sided, at least initially, with Mezquital. The court recognized that “[t]he right of privacy may be implicitly waived and it is waived by one who files an action for damages resulting from a tort to the extent of the defendant's intervening right to investigate and ascertain for himself the true state of injury." However, certain levels of investigation can surpasses “reasonable and unobtrusive observation” and would “disturb an ordinary person without hypersensitive reactions.” Considering the repeated events of criminal trespass for the purpose of conducting surveillance, the Court held that Mezquital’s allegations, if proven true, “may constitute an ‘unreasonable intrusion.’”
Precedent to distinguish unlawful from lawful surveillance is becoming more robust. In 2011, the California Central District Court in Carter v. County of L.A., 770 F. Supp. 2d 1042, held that covert video surveillance by an employer in a workplace violated individual privacy. Described as an “intrusive method of investigation,” covert video surveillance opposed “anti-Orwellian traditions.” Although the intrusiveness of investigatory tactics must be balanced against the seriousness of the suspected misconduct, Carter determined secret video recordings as too severe, noting similar opinions in the Ninth, Seventh, Eighth, Tenth, and Fifth federal circuit courts of appeal.
In 2005, the U.S. District Court for the Middle District of Georgia held in Anderson v. City of Columbus, 374 F. Supp. 2d 1240, that a Georgia city could not intercept an employee’s private conversations, unrelated to city business, despite the same employee’s consent to recorded business calls. While there was no violation of the Wiretap Act or Omnibus Crime Control and Safe Streets Act of 1968, 18 U. S. C. §§2510-2522 since the recordings of the employee’s private conversations were unintentional (due to an inadvertent system error), the employer lost qualified immunity protections for the employee’s discharge upon learning of disparaging comments made by the employee during those private calls.
In 2020, the Massachusetts Supreme Court held that the limited use of automatic license plate readers did not constitute a search under the U.S. 4th Amendment to the Constitution and that the Stored Communications Act, 18 U.S.C. § 2703, was inapplicable. Examining law enforcement use of digital license plate readers, the Judges in Commonwealth v. McCarthy, 484 Mass. 493, referenced the United States Supreme Court’s 2012 opinion in United States v. Jones, 565 U.S. 400, noting that “the continuous, tireless, effortless, and absolute surveillance of the digital age contravenes expectations of privacy that are rooted in these historical and practical limitations. For this reason, when the duration of digital surveillance drastically exceeds what would have been possible with traditional law enforcement methods, that surveillance constitutes a search.”
And, a 2021 opinion by the U.S. District Court for the Northern District of California in Khraibut v. Chahal, 2021 WL 1164940, reinforced that spyware software is an intrusion into digital privacy, as individuals enjoy an “objectively reasonable expectation of privacy in the contents of their personal computers.”
With an increased use of application and event logs to detect and determine the source of cyber-attacks, it is fathomable that such logging systems may present new "intrusive" surveillance claims.