Does New York City Need Electronic Surveillance of its Clubs & Bars?
Many cities across the country, as disparate as New York and Milwaukee, are proposing legislation that would impose stringent new security measures on bars and nightclubs. These proposals come in response to incidents of underage drinkers being dangerously intoxicated or falling victim to foul play after a night of drinking at a nightclub. The proposed legislation in New York City would mandate that clubs install video surveillance cameras at club entrances and exits and also retain the footage for a certain period of time. Other items in the new law would require clubs to use electronic ID scanners to verify and download a patron’s state-issued identification. The City government of Milwaukee takes the law a step further and is proposing legislation that clubs record and retain video footage of patrons throughout their establishments.
Current Security Measures
Many club owners have wisely taken it upon themselves to institute measures such as ID scanners and security cameras for risk-management reasons. If an underage person is found intoxicated or injured on their premises, the nightclub could face severe criminal, civil and regulatory penalties. Many establishments already maintain security cameras at entrances to protect themselves from false allegations by disgruntled patrons who were denied entry. The proponents of these proposed laws argue that given the prevalence of video cameras in public places, including nightclubs, there should be no objection to requiring clubs to record and preserve video footage.
Electronic Surveillance Concerns
Although video cameras generally are commonplace at clubs, they are controlled by club owners and footage would only be retained if it recorded an incident that could be the subject of criminal or civil litigation. Otherwise, any individual on videotape is generally not subjected to undue scrutiny. The club owner would have no particular interest in that individual nor would the club owner possess unlimited resources and databases to collate, organize or track the club patron’s habits or behavior. However, if a nightclub owner were to be required by law to record and preserve video footage for a mandated period of time, there is governmental intrusion and a greater probability that video footage could be provided to police or regulatory agencies such as Liquor Licensing Authorities. Even more troubling than security cameras, ID scanners can store vital information about people such as names, addresses, and birthdays. This raises several privacy concerns about the security and disposition of such data.
Although numerous studies have found that video surveillance is not a particularly effective tool against crime, many cities throughout the world record and retain video footage from public areas. However, many Americans have a less than trusting view of government. Most nightclub patrons tend to worry less about club owners misusing video images or personal information, such as selling it to marketers, than the idea of police having easy access to their data or images. Just as police have been known to videotape activists at political protests and create a dossier on these people, those tools could allow police to create and maintain files on frequent nightlife patrons. For instance, if a known drug dealer is videotaped entering a club, the club could be presumed to be a haven for drug dealers. The club’s owner and possibly any individuals at the club coming into contact with this person could now find themselves subject to police scrutiny.
Another problem with this proposed legislation is how and when the police will obtain access to data and images maintained by the club’s proprietors. Safeguards must be in place to restrain the police from unfettered access to data and video footage from nightclubs. Currently none of the planned legislation requires judicial warrants for police to obtain these materials. Just as in “pretext” traffic stops by police of minority youths, a spurious nexus to a crime in an area could result in nightclubs being compelled to provide police or regulatory agencies with fodder for “fishing expeditions”. A club with community opposition or with a history of violations may become an easy target for this type of governmental abuse.
The maintenance of the data covered under this proposed legislation could also place a substantial financial burden on club owners. Aside from the costs of complying with the strict requirements of retaining and organizing this data, club owners would now have to be hyper-vigilant about preventing any minor breach of a code promulgated by any of the many agencies regulating nightlife. With the knowledge that video footage may be later viewed by these agencies, clubs would very likely feel compelled to maintain extensive internal records of their handling of even the most minor of infractions. Once it becomes law for nightclubs to maintain this data for a certain period of time, clubs also may become a magnet for attorneys issuing subpoenas in such civil lawsuits such as negligence, divorce or insurance fraud.
In addition, many of the security measures mandated by these laws could subject clubs to civil liability by forcing them to submit data collected by them to police upon demand. Developing technology, such as facial recognition software, now being tested in clubs across the country, creates a potential minefield for club owners. Facial recognition software has a high rate of error and misidentification. If a club owner mistakenly identifies a prospective patron as a “trouble-maker” and bars his entry, the club would unlikely face a civil lawsuit by that individual. However, if the club-owner’s “profiling” of that person was disclosed to local police, the excluded patron could justifiably have cause for concern and may seek civil damages against the nightclub proprietor.
Conclusion
Teenagers gaining entry to nightclubs with false identification as well as heavily intoxicated club-goers are serious problems both to club owners and to themselves. Despite well-meaning legislation, one would be hard-pressed to argue that this class of persons is more vulnerable than children in schools, patients in hospitals or nursing home residents. None of these institutions are mandated by law to record and retain video footage of all activities that occur on their premises. Nightclub operators should clearly be held accountable in both the criminal and civil courts if they violate the law, but subjecting them and their customers to undue governmentally-mandated oversight and surveillance would be problematic as well as ripe for abuse.
Jeanie L. Gibbs
Director of Operations | HospitalityLawyer.com
(713) 963-8800
HospitalityLawyer.com
