By Sarah Berent

We can all agree that when using a public restroom, we expect a certain level of privacy. So spotting a camera aimed straight at a toilet will be disturbing. Even more so if you first discover the camera on your way out of the bathroom.

According to a recent news article, patrons of a California convenience store, Circle K, found themselves in this very situation when they noticed a camera with an “electronic eye pointed straight at the sink and toilet area” of the single stall-men’s bathroom. Store employees insist the camera is not functional, but after gang letters and symbols were carved into the restroom’s walls, management installed the camera as a decoy to discourage vandalism.

Unsurprisingly, the camera prompted complaints from customers who were disturbed by the camera’s presence. The press account quotes a particular man fearing his bathroom activities might wind up on YouTube, and after the release of the now-viral security camera footage of a woman walking into a mall water fountain with security personnel snickering in the background, I’d say his fear may be valid.

The legality of the situation is not clear from the article. The article cites “legal experts” who say the store is “not technically breaking any laws” but fails to mention or explain the laws at issue. The experts also cite the possibility of “legal challenges” from customers who don’t realize that the camera is not recording but fail to state what these challenges actually are.

Our own research suggests that while the camera might not be “on”, there’s still a possibility of a successful civil lawsuit for anyone who used this bathroom.

There have been previous recent reports of criminal liability regarding cameras in public restrooms but those situations involved clearly operable cameras. One such case, also in California, (what is it about California proprietors installing cameras in public bathrooms?) involved a hidden camera placed in the restroom of a bar while the recordings were displayed on a monitor in the backroom. This case is currently under review by the district attorney’s office. Another case, in Texas, involved a camera installed by a gas station employee in a public restroom for kicks where the offender was arrested for illegal videotaping and is currently awaiting trial.

Although a camera installed in a bathroom certainly feels like it should be criminal, California’s Penal Code Section 647(j)(3)(A) requires actual recording or first-hand viewing. The statute criminalizes the actions of anyone who “who uses a concealed camcorder, motion picture camera, or photographic camera of any type, to secretly videotape, film, photograph, or record…another, identifiable person who may be in a state of full or partial undress, for the purpose of viewing …that other person, without the consent or knowledge of that other person, in the interior of a bedroom, bathroom…or the interior of any other area in which that other person has a reasonable expectation of privacy, with the intent to invade the privacy of that other person.”

If the camera in Circle K’s bathroom is really just a decoy, as the employee in the article claims, and was never used to record then criminal charges would be hard to justify.

Since the requirements for a criminal charge are not necessarily fulfilled, patrons who used Circle K’s men’s room have the option to sue civilly for invasion of privacy, which comes with a more lenient standard of proof.

Consider Hernandez v. Hillsides, Inc., a 2009 California Supreme Court case regarding an invasion of privacy claim brought by employees of Hillsides Children Center, a private, non-profit center for abused children, against the facility after the discovery of a hidden camera in their office. The camera was installed in attempt to catch the culprit responsible for viewing Internet porn late at night on the plaintiff-employees’ computers. The facility operators did not suspect the plaintiffs as the porn viewer and were diligent in their efforts to avoid recording these particular employees.

These efforts — turning the camera on after the employees’ shifts ended, limiting access to the camera monitor in a locked storage room, only having the camera in their office for twenty-one days — were important to the case. It convinced the court there was enough evidence for the case to proceed before a jury to consider whether there was an actual invasion of privacy.

Hernandez provides the guiding legal framework for a suit brought in California for invasion of privacy. The plaintiffs must prove that: 1) there was an “intentional intrusion” in a place where there is a “reasonable expectation of privacy”, violating social norms and 2) the intrusion must be “highly offensive” under the circumstances at issue.

Back to Circle K: We know that there is a reasonable expectation of privacy when using a public restroom and that having a camera mounted on the wall violates social norms. If the camera was found to be operable while patrons used the restroom, this would most certainly constitute “highly offensive” conduct (and under California law, a crime). But was there an “intrusion” if the camera wasn’t working?

A 2010 case in Iowa offers some help on this very issue. There, an employee sued her boss for invasion of privacy after discovering a camera in the office bathroom. When found, the camera was not functional. Its battery was dead and the surveillance system was not set up to receive images from the camera. Focusing on the first element, the “intentional intrusion”, the court stated an intentional intrusion could be found if the camera was merely proved to be “capable of functioning while in the bathroom.” An actual recording was not necessary for the case to proceed to trial, where a jury would decide if there was, in fact, an invasion of privacy.

At Circle K, the requisite intrusion could be found through the mere existence of the camera in the restroom if the camera had the capability of recording customers. If it was possible for store employees to render the camera functional, a legal argument could go forward regarding an invasion of privacy.

As for the store’s excuse for installing the camera, deterring vandalism, we have a better solution: don’t allow patrons to use the bathroom. Certainly saves on legal fees.