11/20/2018

To Unman or Not to Unman

Drones are legal—but not for purposes of conducting investigative surveillance

By David Finney , Kate Bongiovanni

Unmanned surveillance can be a valid and effective technique to perform investigations on certain types of claims. However, to ensure that unmanned surveillance is providing your business with valuable returns, this investigative technique must be performed legally and effectively. If your business is considering unmanned surveillance, then it pays to be informed.

Is It Legal?

As a threshold matter, the methods used to deploy unmanned surveillance should be communicated by those conducting the investigation. Such methods must be legal, as this may impact an insurer’s ability to use the surveillance footage as evidence during litigation.

Certain methods of deployment can be illegal from the outset. For example, mounting cameras on a street sign or telephone pole can qualify as illegal trespass, vandalism, or invasion of privacy under state and/or local laws. In Florida, it is a crime to intentionally damage public telephone equipment. Similarly, in California, it is a crime to damage or mutilate any sign that belongs to the state, city, county, or individual person. At the local level in Texas, it is unlawful to place, operate, or maintain a private security camera in a public right-of-way.

Unmanned or remote equipment deployment should be completed by licensed private investigators, who should monitor its performance and review the contents. At least 45 states (and several localities) require private investigators to be licensed. These licensing rules demand various experience, education, and testing requirements, and the primary purpose is to ensure that private investigators perform their duties safely, ethically, and in accordance with applicable law.

Using a trained, licensed investigator to deploy the unmanned surveillance equipment ensures that the footage is legally captured and admissible. Further, the private investigator will have the capability and expertise to provide valid authentication of the footage.

Similar to traditional surveillance investigations, the investigators could be called to testify in depositions, hearings, and other court appearances. They should be familiar with the equipment and be well prepared to face the scrutiny of opposing counsel.

Is It Effective?

The effectiveness of unmanned surveillance as a tool for your investigative needs should be evaluated on a case-by-case basis. Your evaluation should take into consideration factors such as the type of claim being investigated; the stage of investigation at which unmanned surveillance will be most effective (e.g., as a preliminary investigative tool to establish patterns or practices); and the environment in which the unmanned surveillance will be utilized.

In particular, the environment and equipment will be critical in this analysis. Is the equipment accessible by the investigator? Can the investigator control the camera and tilt, pan, or zoom the lens for the most effective evidence compilation? Will the equipment outlast a lengthy deployment?

Whether unmanned, remote, or continuous, the investigative method has a place (though it is not the end-all solution), and the latest technology facilitates actionable evidence gathering. For example, if a residential development has a single entrance/exit, the expertly deployed equipment can monitor the entry/exit without the investigator’s presence. However, the investigator is a short distance away and, without causing attention, begins surveillance after the subject departs the area.

Equipment, deployment, and monitoring contribute to the quality of the video evidence. The video surveillance captured by the unmanned equipment can be hours or even days long. Licensed private investigators should provide knowledgeable support to review and analyze the footage to determine its value and effectiveness specific to the investigation.

Unmanned Versus Traditional Investigative Techniques

Unmanned surveillance as an investigative technique is only as good as the legality of its deployment and the effectiveness of the product. The most effective approach is to use unmanned surveillance as a complement to physical surveillance—that is, having a team of skilled, licensed private investigators performing in connection with the unmanned capability.

Completed illegally or haphazardly, unmanned surveillance can run afoul of state or city municipal rules concerning trespassing and vandalism and can render the footage useless. Worse, the associated brand and reputational damage can be significant.

The unmanned technique can be highly effective and valuable if deployed correctly, legally, and along with other investigative initiatives. Consult with your investigative resource to determine the course of action that is best for your business.

 

SIDEBAR

Laying Down the Law


The use of popular gadgets, like drones, has its own set of legal landmines. Drone laws like Florida’s Freedom from Unwarranted Surveillance Act (FUSA) and similar laws in other states throughout the country limit the use of drones for surveillance and provide private rights of action when drone use by private persons or companies violate the statute. FUSA also explicitly states that evidence obtained or collected in violation of FUSA is not admissible as evidence in a criminal prosecution.

The Federal Aviation Administration also regulates the use of unmanned aircraft systems and, in many cases, requires registration of drones prior to use. These challenges make it difficult or impossible to obtain legal surveillance footage using drones. You should avoid drone use in this manner in order to protect your business interests and accomplish your investigative objectives.

 



David Finney is chief strategy and compliance officer at CoventBridge. He can be reached at david.finney@coventbridge.com.

Kate Bongiovanni is general counsel at CoventBridge Group. She can be reached at kate.bongiovanni@coventbridge.com.

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