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Surveillance and the Law Maintaining Safety While Respecting Privacy

Secure.  The word has many meanings.  According to Google definitions, it can mean “to fix or attach something to something else.  It can mean to protect against threats or make safe.  Or it can mean to feel free from fear or anxiety.”  Perhaps that feeling of security is the single most important thing we can to feel in our homes.

Security is a major issue for condominium communities today.  The choice to buy into a condominium or other multifamily community overseen by an HOA rather than a private home may even be based on the desire of the purchaser to have peace of mind that security concerns are being addressed on a community-wide basis.  According to an article that appeared in CONDO.ca online, “Security was the number-one concern among people looking to purchase a condominium.” 

The state of surveillance and security has come a long way over the past few decades.  Where security issues used to rest on the employment of security personnel and perimeter fencing, today’s security arrangements are more hi-tech and complex.  Along with technology, has come an uptick in both legislation and litigation—much of it arising at the intersection of legitimate security concerns with equally legitimate concerns about propriety and privacy

Legal Positions

“Although safety is one of the primary concerns of most associations, under the (Illinois Condominium Property Act ICPA and Common Interest Community Association Act (CICAA) an association has no duty to be an ‘absolute insurer’ requiring them to provide security to its members,” says Sima Kirsch, an attorney who specializes in condominium law in Chicago.  “Even without a statutory mandate or language in the governing documents, a board is required to act within its fiduciary duty. A board is charged to act with reasonable or due care when the need arises to prevent harm from foreseeable danger and/or criminal activity, and failure to do so may result in a finding of breach of duty. A board is charged to act with reasonable or due care when it undertakes safety measures whether or not there is a duty - and failure to do so may result in a charge of negligence. A board may limit that duty with an amendment to the appropriate governing documents.”

“The ICPA does not mandate or specify that a condominium association must provide security to its residents,” says Michael C. Kim, of Michael C. Kim & Associates, another Chicago attorney.  “Most condominium declarations and documents do not say that the association has an obligation to provide security.  Having said that, I think as a practical matter, most associations are generally concerned with having premises that are safe - at least in the sense that any threats or incidents that come to the attention of the association needs to be addressed in one fashion or another.”

One important aspect of surveillance law relates to audio recordings.  While video recordings are legal in common areas as long as privacy rights of individuals are respected, audio recordings are strictly out of the question.  “They constitute eavesdropping and are strictly prohibited,” says Kim.  “The law here has gone through some controversy in the past, and there were some recently enacted amendatory statutes that tried to clarify what was permissible and not permissible while not infringing on first amendment rights.”  

Kirsch, concurring with Kim’s statement says  “Audio recordings may not be made of another, even in common areas, without that person’s consent.  Depending where it might occur, it is a violation of the federal Wiretap Act and/or the Illinois eavesdropping law.”  Incidentally, while most law governing condominiums and privacy are state laws, the prohibition on eavesdropping is a federal statute.

Increased Liability?

What are the long range effects of camera surveillance on the condominium corporation and its board of directors?  Do sophisticated surveillance systems increase liability?  Kim says “If cameras are objectively reporting what happens, and in that regard providing objective verification of a situation, it is always helpful for either side.  Let’s assume a claim is made that’s not accurate - a false claim.  The recording will hopefully show the actual event and disprove the claim.  On the other hand, if the recording shows that something happened that was clearly, ‘the fault of the association,’ it encourages the association to deal with the reality of the matter, and can result in faster resolution.”

Kirsch also adds, “The use of cameras helps memorialize accidents and assaults that the board may or may not be responsible for, or help the board tackle a bout of vandalism and keep track of breaches of the association rules.”

Privacy Always Trumps Security

Where can an association record and where can it not?  Some of this may seem obvious.  “Video cameras may be placed in lobbies, parking areas, hallways, around exterior doors,” says Kim, “but you have to be careful.”  There is an expectation of sensible privacy limitations.  “Even though it’s a ‘public restroom’ people have a reasonable expectation of privacy, even in that location.”  Kirsch points out as well that, “A camera may not point into a window of a unit.  That’s a violation of privacy.”

“The most effective method of security is any plan tailored to the needs of the particular association,” says Kirsch.  “As with any decision a board makes, a need connected to a purpose of the association must exist. First, in order to get the best result, a board must know what money it can allot to such project and determine the objectives of security for its association. This analysis is important, because research tells us that some methods don’t actually deter negative activity and are only used to assist in resolving crime. Is the building in a crime-free area, or one where the danger is foreseeable? Is it a single building or a few buildings on a little plot of land, or is it a sprawling community of thousands of units? Maybe a video intercom is enough, or maybe a much more inclusive plan is required. Today there are so many options that many boards and managers get drawn in by the gadget rather than concentrate on its functionality and the particular need of the association. Don’t buy or be talked into something you don’t need, even if it sounds good.”

Dummy Cameras, Key Fobs, and Tracking Cards 

When it comes to the idea of installing fake or non-functional cameras to give the impression of robust surveillance, the short answer is no, no, no!  Universally, the one thing attorneys say is stay away from ‘dummy’ cameras. “This falls into the don’t-ever-do category,” says Kirsch. “If the owners believe it is real, a false sense of safety is created. As stated above, if a duty is undertaken and due care is not employed and/or the neighborhood warrants it and reasonable care is not taken to protect the area and members/guests/other residents the board will be found liable if it is the proximate result of their negligence.”

In addition to high-quality video cameras with or without security personnel, one of the most popular innovations in security and surveillance today are key fobs and security card access systems.  Kirsch points out that, “The one-time cost for the fobs and annual maintenance is less than the cost to maintain round-the-clock door persons. The cost for the individual fob can be passed to the owner. Everything is contained in a computer program and new access codes can be reprogrammed.”  

Kim is also positive about fob technology.  “They are a good idea,” he says. “It creates a record as to what device was used to get into the property.  It has the benefit of a cost savings measure as well as they can be deactivated.”  You don’t have to change the locks.

How long do you keep the videos and who gets to see them?

Two legal issues that crop up relative to the use of video cameras today are how long should recordings be kept and who should have access to them.  Many video security systems are set up to record over existing footage every thirty days.  Kim advises that keeping the recordings “for anything shorter than thirty days runs the risk that you might dispose of evidence.”

Kirsh suggests that, “First it is important to establish a technology policy that will set out the purpose of the technology.  Of course what the policy actually looks like depends on the individual association.”  Generally, attorneys encourage their clients to back up the systems every month and to keep either disks or cloud storage of the backup for some longer period of time, “as little as 6 months up to 2 years, our general Statute of Limitations for civil matters,” Kirsch advises.

As to who should have access to the recordings Kirsch says, “Under section 19 of the ICPA, the association must maintain—the management company might do this or an off-site facility that is monitoring all of the video access activity—and a member may request records of the association.”

“Certainly this becomes an issue as to whether the recordings are considered books or records of the association,” Kim says.  “Obviously, in most corporate settings members of the organization have a right to inspect books and records.  Typically, this relates to the financial records and minutes of meeting, things of that kind.  For the most part the security camera recordings are probably not business records.  Having said that, you have recordings being made.  If there is a bona fide need to now, meaning that if someone’s car has been vandalized and they want to see the appropriate recordings I don’t see any legal reason to deny it.  If a third party outsider says he/she wants to see the tape then it’s different.  There is a stranger demanding access.  In those situations we would require a subpoena or some other legal process to be utilized.  There must be a bona fide reason.”  As a rule Kim believes access should be allowed to the managing agent, board members and to other members when requested.

In the end Kim offers some good—if rather low-tech—advice to both condo and HOA boards and to residents: “The association has a duty to maintain its property.  All residents though should practice situational awareness.  Don’t let strangers follow you into the building.”  He also recommends that condo associations and residents “take advantage of two resources that are readily available and at no charge: the local police with regard to criminal activity, and your insurance agent for property damage and loss prevention with regard to the property that might not rise to the level of a criminal investigation.  The police are there for personal safety,” he says, “and the insurance people are there for the property issues.  Use them as an available and free resource.  They will be happy to try to help you.”            

A.J. Sidransky is a published novelist and staff writer for The Chicagoland Cooperator. 

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