Update on S 3214 "Surreptitious
Video Surveillance Act"
Colleagues,
Message From Larry Sabbath - NCISS Legislative Avocate
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.".
NCISS
7501 Sparrows
Point Blvd.
Baltimore, Maryland 21219-1927
(800) 445-8408 . Fax:
(410) 388-9746
Email:
jim@nciss.org
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association newsletters)
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