Below is an email from NCISS Washington advocate Larry Sabbath, who accompanied ISPLA/NCISS members Bruce Hulme and Stu Drobny to a conference this past Monday at the office of Senator Arlen Specter (D-PA). Also present was Jimmie Mesis, editor of PI Magazine and now the chairman of the NCISS investigations legislative committee. Bruce Hulme, ISPLA Legislative Director again extends thanks to Stu Drobny for arranging the meeting and ISPLA's Nicole Bocra for her ongoing assistance in her lobbying of this piece of legislation.

At the meeting, Bruce Hulme indicated his concern with how this legislation might be interpreted to include security cameras and he requested further clarification.  He and other representatives of our industry also expressed hope that there would be further writing with regard to the legislative history of this bill. In addition to the revision by Congressional staff adding the word "Residence" to portions of the bill, it is important to point out to our security members of ISPLA, and to the other associations with whom we have been working, on an additional change to this bill.  ISPLA is pleased that the following language was added to the draft which assuages our concern:

"(2) does not include security monitoring devices installed or operated by, or at the direction of, the owner or leaseholder of the property."　

There had also been concern expressed on how this proposed legislation might affect possible undercover operations that might be video taped or the legality of the installation of "Nanny Cams." If one takes note under the section "2523. Prohibition on use of video surveillance in a residence", the definition allows such video if made with the consent of an individual present in the area which would cover an undercover or sting operation. Nanny Cams could be utilized without the parents being present as the resident of a residence or temporary residence may give consent to utilizing such a video device and not have to remain within the premises.

Last evening, Bruce Hulme provided Larry Sabbath with a copy of　the draft language below which the Senator's staff had transmitted to Stu Drobny. ISPLA is pleased that despite the reluctance of the present leadership of NCISS to accept ISPLA's offer of free PAC services, the two organizations were able to work in tandem on this particular legislative issue. It is grateful to Stu for facilitating this dialog and the resulting mutual cooperation.

Senator Specter's office has advised us:

"... regarding the Surreptitious Video Surveillance Act of 2010 (S.3214).... S 3214 applies only to surreptitious video surveillance in residences – not other locations – and does not make illegal video surveillance conducted inside a residence if made with the consent of "an individual present in the area," or of "a resident of the temporary or permanent residence" who does not need to be present at the time of the surveillance.  See sec. 2523(a)(3)(A) of S-3214.

"Nevertheless we understand the concerns of private investigators.  As we discussed, we have made some changes to the language of the bill to address those matters to address those concerns.   I have attached the bill - in word format - with the changed language in yellow highlight. This revised bill could be made part of a managers’ amendment at a markup once the bill is listed."　

Notwithstanding the fact that this bill in its present form now poses no problem to this profession, privacy advocates may very well endeavor to make detrimental changes to it as the bill advances. Nicole Bocra, and other members of ISPLA's legislative affairs committee, will continue to work with Senator Specter's office to ensure that the final bill contains the additional draft language as written below.　

ISPLA Executive Committee　　

Message From Larry Sabbath - NCISS Legislative Avocate

Update on S 3214 "Surreptitious Video Surveillance Act"

Last week   Jimmie Mesis, NCISS member Stu Drobny and I attended a meeting with staff of the Senate Judiciary Committee 　to discuss our concerns with S 3214, the Surreptitious Video Surveillance Act".　 The meeting was arranged by Stu after he had discussed the issue with Senator Arlen Specter, (D-PA), the bill's sponsor.　 At the meeting, Jimmie suggested that the bill make clear that the only surveillance to be restricted would be that done in a residence.　 Today, the staff forwarded the attached revision of the legislation to include the clarification.　 NCISS will continue to work with the staff throughout the legislative process to assure the bill remains limited in scope.

Here is the revised text of the bill with the changes highlighted in yellow:

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, SECTION 1. SHORT TITLE.

This Act may be cited as the "Surreptitious Video Surveillance in a Residence Act of 2010".

SEC. 2. PROHIBITION ON USE OF VIDEO SURVEILLANCE IN A RESIDENCE.

(a) In General.-Chapter 119 of title 18, United States Code, is amended by adding at the end the following:

"2523. Prohibition on use of video surveillance in a residence

"(a) Definition.-In this section, the term 'video surveillance'-

"(1) means the intentional acquisition, capture, or recording of a visual image or images of any individual if-

"(A) the individual is in an area of a temporary or permanent residence that is not readily observable from a public location;

"(B) the individual has a reasonable expectation of privacy in the area; and

"(C) the visual image or images-

"(i) are made without the consent of-

"(I) an individual present in the area; or

"(II) a resident of the temporary or permanent residence; and

"(ii) are-

"(I) produced using a device, apparatus, or other item that was mailed, shipped, or transported in or affecting interstate or foreign commerce by any means; or

"(II) transported or transmitted, in or affecting, or using any means or facility of, interstate or foreign commerce, including by computer; and

"(2) does not include security monitoring devices installed or operated by, or at the direction of, the owner or leaseholder of the property.

"(b) Prohibition on Video Surveillance.-It shall be unlawful for any person to engage in any video surveillance, except-

"(1) as provided in this section; or

"(2) as authorized under the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.).

"(c) Treatment as Electronic Surveillance.-

"(1) In general.-Subject to paragraph (2)-

"(A) video surveillance shall be considered to be an interception of an electronic communication for the purposes of this chapter; and

"(B) it shall not be unlawful for a person to engage in video surveillance if the video surveillance is conducted in a manner or is of a type authorized under this chapter for the interception of an electronic communication.

"(2) Exception.-Sections 2511(2)(c), 2511(2)(d), 2512, 2513, and 2518(10)(c) shall not apply to video surveillance.

"(3) Prohibition of use as evidence of video surveillance.-

"(A) In general.-No part of the contents of video surveillance and no evidence derived from video surveillance may be received in evidence in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the United States, a State, or political subdivision thereof if the disclosure of the video surveillance would be in violation of this chapter.

"(B) Motion to suppress.-

"(i) In general.-Any aggrieved person in any trial, hearing, or proceeding described in subparagraph (A) may move to suppress the contents of any video surveillance conducted under this chapter, or any evidence derived from the video surveillance, on the grounds that-

"(I) the video surveillance was unlawfully conducted;

"(II) the order of authorization or approval under which the video surveillance was conducted was insufficient on its face; or

"(III) the video surveillance was not conducted in conformity with the order of authorization or approval.

"(ii) Timing of motion.-A motion made under clause (i) shall be made before the trial, hearing, or proceeding unless-

"(I) there was no opportunity to make such motion; or

"(II) the aggrieved person described in clause (i) was not aware of the grounds of the motion.

"(iii) Remedy.-If the motion made under clause (i) is granted, the contents of the video surveillance, or evidence derived from the video surveillance, shall be treated as having been obtained in violation of this chapter.

"(iv) Inspection of evidence.-The judge, upon filing of a motion under clause (i), may, in the discretion of the judge, make available to the aggrieved person or counsel for the aggrieved person for inspection such portions of the video surveillance or evidence derived from the video surveillance as the judge determines to be in the interests of justice.

"(v) Right to appeal.-

"(I) In general.-In addition to any other right to appeal, the United States shall have the right to appeal from an order granting a motion made under clause (i), or the denial of an application for an order of approval, if the United States attorney certifies to the judge or other official granting the motion or denying the application that the appeal is not taken for purposes of delay.

"(II) Filing deadline.-An appeal under subclause (I) shall-

"(aa) be taken within 30 days after the date the order was entered; and

"(bb) be diligently prosecuted.".

(b) Chapter Analysis.-The table of sections for chapter 119 of title 18, United States Code, is amended by adding at the end the following:

"2523. Prohibition on use of video surveillance in a residence.".