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Legal Update: Internet Pornography


Our legal update with Dan Eaton looks at a recent California Supreme Court ruling that involves internet pornography at work.

MAUREEN CAVANAUGH (Host): I'm Maureen Cavanaugh. You're listening to These Days on KPBS. Do you ever wonder if your employer is secretly watching you? The results of a recent California Supreme Court ruling may make you keep wondering. The case had to do with internet pornography and a hidden camera. On this legal update, we'll talk about that ruling, plus federal judges say California overstepped its authority in trying to help families reclaim artworks looted by the Nazis. And there's some good news for office betting pools. Joining me to talk about all these recent decisions is our legal analyst Dan Eaton. Welcome, Dan.

DAN EATON (Attorney, KPBS Legal Analyst): Thank you, Maureen. Nice to see you.

CAVANAUGH: Well, this ruling on employee surveillance, video surveillance of employees, the California Supreme Court issued an important ruling early this month addressing the issue of video surveillance. What can you tell us about that case?

EATON: Well, the facts – It's very important, Maureen, to understand the basic facts of the case. What happened was – The employer was a nonprofit center for abandoned and neglected and sexually abused children. And what happened was, two employees, who worked in an administrative capacity at the facility, sued for invasion of privacy after discovering that the director of the facility had, in fact, installed secret video surveillance equipment in their offices. Now just so we understand the layout of the office, the office was enclosed and there – so there was a door, and there were three windows but it had blinds. And the women said that they often – they occasionally used it, the office, to change their clothes for fitness purposes and one even said that on two or three occasions she had actually opened up her shirt to the other female employee to show her post-pregnancy figure. So you can understand why they would be concerned about video surveillance that was going on without their knowledge.

CAVANAUGH: And yet, at the same time, the court found that the employer had a pretty good reason for wanting to find out what was going on.

EATON: Right, and before we get to what the court did, let's…


EATON: …sort of understand why the video surveillance was installed, which is essentially what your question was in the first place. The video surveillance was installed because it turns out that they were able to do a printout of what was being accessed on the computer, what internet sites and so forth. Well, the particular person – the computer's – the facility's computer specialist realized that two computers were being used to access inappropriate pornography and other inappropriate sites. One of those computers was in a computer lab to which people generally had access. The other was on one of these two women's desks. Now they were being accessed, this material was being accessed late at night or early in the morning, so these two women, of course, were not at all suspected for doing it. What the director suspected was going on was that some other person in the facility's employ who had unfettered access to their offices was doing it. So to catch the perpetrator, he installed these equipment – these video surveillance material, one was a motion detector, the other was a hidden camera, to catch the perpetrator at work. Obviously, there's a special sensitivity, given that we are talking about a center for abused children. The – It's important to realize, Maureen, that this could only be activated from a storage room and videotaped from a storage room to which only about anywhere – about a dozen staff members had access, and it was only plugged in three times during the three weeks that it was – that the equipment was installed.

CAVANAUGH: But the employees found out about it in a very sort of disturbing way.

EATON: They did. Yeah. One of the women found a flashing light actually. Because what happened was, the motion detector or one of the two pieces of equipment, I forget which one, was hidden in the lap of a toy, actually, on the bookshelf and the camera was on the top shelf of the bookself and this other piece was hidden lower down in a toy. What happened was, they saw a red flashing light because…

CAVANAUGH: That's very upsetting.

EATON: …because the equipment itself in the office was plugged in all of the time; it just wasn't activated from this remote storage room. And she saw this. They immediately contacted their supervisor then they went to the facility director who apologized, said he couldn't really tell them in advance because he didn't want needless gossip about it. And he apologized and offered to show them the video which showed, Maureen, exactly nothing. No one was caught. Apparently the perpetrator found out and stopped his or her errant ways and, therefore, the – you had an essentially blank video for these three occasions that the equipment was activated. Nonetheless, the employees were very upset and they did sue for invasion of their privacy.

CAVANAUGH: Now, this is an interesting case for the California Supreme Court because they – what they were actually deciding was whether or not these employees had the right to bring this case to trial.

EATON: Well, that's right, exactly right. The question was whether they had the right to present their case, Maureen, to a jury or whether it should be thrown out without their even getting a chance to show that they had – to show that they had been damaged by this invasion of privacy. They essentially analyzed this under two different claims that these two employees brought. The first claim was a right based on the general law, or the common law of privacy is what it's called, that gives a person a right to damages for unlawful intrusions into their private space, into their privacy. The second basis was actually rooted in the California constitution which applies both to government entities and private entities under rulings of the California Supreme Court that says it's a violation of the California constitution to invade someone's privacy. We have a right to privacy in our own state constitution. The court had to answer two questions, the California Supreme Court. The first was did the facility intrude on the employees' reasonable expectation of privacy in their office? And, two, if the employees did have a reasonable expectation of privacy on which the facility did intrude, would a hypothetical, reasonable person, this reasonable person that exists out there in the air, consider the intrusion so offensive and serious under all of the circumstances of the case—remember the facts that we gave—that it would violate basic social norms or standards. So those were the two questions.

CAVANAUGH: So what did the court rule on those two questions?

EATON: It was a unanimous opinion, Maureen, and it was very interesting. The first – on the first question, whether the women had a reasonable expectation of privacy, they said yes, the women did have a reasonable expectation of privacy in their office, even though the facility, like many employers, I daresay most California employers, certainly those that are advised by me, have a policy that says, look, your internet usage can be monitored, we have the right to print it out, you have no reasonable expectation of privacy. This is what the policy said. It was very clear. But the court said, look, even though they had put them on notice that their computer usage could be monitored, it did not put them on notice that you could take a drastic action of video surveillance. So, yes, they said, there was a reasonable expectation of privacy and, yes, it was invaded by installing this monitoring equipment.


EATON: There's always a but in…

CAVANAUGH: But they wouldn't – the – Since a jury probably wouldn't find that they had any – that they – the jury probably wouldn't have awarded them anything, they weren't able to take it to court anyway.

EATON: Well, and this was the second question…


EATON: …Maureen, wasn't it? And, again, unanimously the court said, look, under all of the circumstances of this case, no reasonable juror could find that this was, indeed, a – an intrusion sufficiently offensive to justify an award of damages against the facility. They said – The court ruled that the employees were not entitled to present their case to the jury because it wasn't highly offensive. The court emphasized, by the way, the very limited nature of its holding. It summarized its conclusion as follow – and here I'll read from the court's opinion, quote, the undisputed evidence is that the facility installed the video surveillance equipment in the employees' office and activated it three times after they left work in order to confirm a strong suspicion, triggered by publicized network tracking measures, that an unknown staff person was engaged in unauthorized and inappropriate computer use at night, given the apparent risk under existing law of doing nothing to avert that problem—meaning they could be sued if someone is accessing these things and, you know, for sexual harassment and so forth—and the limited range of available solutions to the facility, the facility's conduct was not highly offensive. And they couldn’t even present it to a jury. It was thrown out.

CAVANAUGH: So does this put companies on notice that if they are going to be conducting investigations, they really have to be as limited in scope as this is – as this one was?

EATON: Well, Maureen, really it goes to the facts of the case, and the unusual facts of the case. It's hard to imagine a more compelling and sympathetic fact from the employer's perspective of a center for abused and sexually neglected (sic) children for video surveillance of somebody accessing internet pornography from a computer. But this doesn't give employers free license to do this. In fact, if any of these facts were missing from the next case and a different employer, you can imagine a very different result. And at the very least, an employer having to justify why it is they did this and why it was appropriate even if they don't have to show that there were absolutely no other alternatives that could've reached the same result.

CAVANAUGH: Let's move on to our case about Nazi-looted art. Last week, the United States Court of Appeals for the Ninth Circuit, which hears our federal appeals, agreed with a lower court that a California law making it easier for private individuals to recover art stolen by the Nazis was unconstitutional. What was the background of that case?

EATON: Again, like the last case, this came out of Pasadena so something was going on in Pasadena over the last few weeks. But this was a case involving the Norton Simon Museum of Art and it involved two paintings the museum had on display, Maureen, by a 16th century artist by the name of Lucas Cranach the Elder and it was – these paintings were alleged to have been looted by the Nazis. As a matter of fact, among their many atrocities, of course, the Nazis stole hundreds of thousands of works of precious art from Jewish private and public collections and so forth. These particular paintings, by the way, were sent to the country estate of Herman Goering, who was one of the top Nazi officials. The last heir of the art dealer who allegedly purchased these at a 1931 Berlin auction said, wait a minute, these belong to my family, I ought to get these back. So the question was, well, wait a minute, you are talking about something that happened back in the – World War II and the sale was to a museum in 1971. Isn't it too late?

CAVANAUGH: And the California law tried to extend the amount of time that victims have – having their family's looted art by the Nazis to reclaim, to file claims for those to have them returned, but the Ninth Circuit said that's like conducting foreign policy and California can't do that.

EATON: California can't conduct foreign policy. Let's understand exactly how the painting got into the Norton – the Simon Museum's hand. What happened was, it was repatriated to the Dutch government because this was a Jewish art dealer in the Netherlands, as a matter of fact. And it was sent to – the Dutch government in turn sent it to one of the two claimants, which was not part of this person's family, and then that claimant, in turn, sold it to the museum. But, no, California cannot conduct its own foreign policy, said the Ninth Circuit Court of Appeals and, therefore, you're out of luck. As a matter of fact, the court ruled 2-to-1 that the California legislature's law that extended the statute of limitations to December of 2010 was unconstitutional because it was an effort to, in effect, redress the atrocities of the Nazis and that the – and that California just can't do because it's the exclusive province of the federal government.

CAVANAUGH: That's fascinating. Yeah, and I have – I'm sorry I'm running – rushing you along but we – we have to get to the last case and that is about office betting pools, and we call can sigh – make a sigh of relief here because we're not going to be taken into court for a felony in most office betting pools now with this ruling.

EATON: Just in time for the first kickoff, ladies and gentlemen. The California legislature and Governor Arnold Schwarzenegger comes to the aid. Look, Maureen, we talked about this back in January when we talked about the new laws. This wasn't one of the new laws, it was a law that was vetoed because the governor said it wasn't important enough, remember?

CAVANAUGH: Right, right. Yes.

EATON: And it wasn't on the merits. Well, it turns out that Lake Elsinore Assemblyman Kevin Jeffries did reintroduce the bill as he promised he would. And what this does is it limits – it sharply reduces the criminal penalty for participating in sports pools of a total value of up to $2500.00 so that you're only on the hook if there is any kind of prosecution for a maximum penalty of $250.00. This arose out of a case involving a Riverside grandmother, 73 year old grandmother, who apparently was prosecuted for organizing, if you want to use that term, a $50.00 football betting pool.

CAVANAUGH: And in the past, you could've been charged with a felony.

EATON: Theoretically, but as I said in this segment a couple of years ago, as a matter of fact, prosecutors really weren't devoting that kind of resources and they – yeah, they weren't devoting those kinds of resources to prosecution of these kinds of things. So the bottom line is, you can breathe a half-sigh of relief because you're not completely off the hook but that if, for some reason, there is a prosecution, the penalties are going to be very limited.

CAVANAUGH: And this, just to make – be very clear, this has nothing to do with online betting pools.

EATON: Absolutely not. Those are excluded, as are betting pools of a total value of over $2500.00. Under those circumstances, you're still subject to the broader penalties that were in exist – before this law was passed.

CAVANAUGH: Well, I want to thank you so much. We had to get in a lot…

EATON: We did.

CAVANAUGH: …in very little time.

EATON: A rather wide range of topics today, wasn't it?

CAVANAUGH: But you're the guy to do it. Thank you so much.

EATON: All right, thank you very much, Maureen.

CAVANAUGH: Dan Eaton is These Days' legal analyst. And I want to let you know that the NPR ombudsman, her name is Alicia Shepard, is coming to town this week. She is going to be appearing on These Days, and if you have a question or a comment about the way NPR has covered a news item, please submit a question in advance to You've been listening to These Days on KPBS.

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