In Harry Potter and the Sorcerer’s Stone, wandmaker Ollivander notes that each wand is different and that “the wand chooses the wizard.”  Despite the unique relationship between a wand and wizard, Ollivander was the most sought after wandmaker in the wizarding world.

The relationship between violinists and their violins is so special it might be said that the violin chooses the violinist. Yet, like wizards sought after Ollivander wands, generations of top violinists have aspired to play on a violin made by Antonio Stradivari, who lived in Cremona, Italy more than 300 years ago.

To the average observer, a Stradivari violin or Strad looks much the same as any other old violin, but a Strad’s sound is unequaled. Generations of luthiers have tried, without success, to discover the lost art that makes Stradivari’s instruments so special. Theorizing that the violin varnish was the key to the Strad sound, many tried to find Stradivari’s varnish recipe, but no one found it.

More recently, scientists have analyzed Strads to determine Stradivari’s secret. A few years ago, a group of scientists published the results of a study with the National Academy of Sciences, which claims to have found an answer to this centuries-old mystery. 

This study confirmed that the maple used in Stradivari violins was not unusual, nor was it significantly different from maple wood available today. Instead, the study found that the Stradivari violins were made from maple wood treated with a complex, and unusual, combination of mineral preservatives. The scientists theorized that the different chemical composition of the wood used in Stradivari violins, combined with age, may have made Strads unique.

Facial Recognition Technology

For those who are neither a wizard nor a violinist, one of the most unique things they lay claim to is their face.  Faces are so unique that technology can use a person’s face to in lieu of a password on an iPhone or computer. Last year, Facebook launched facial recognition tools, which it claimed could help people protect their online identities, but which caused concerns among privacy advocates.

Despite concerns, law enforcement embraced facial recognition software to identify and apprehend criminals. Facial recognition is used in airport security  and shopping center security.

Facial Recognition and Video Surveillance in Commercial Real Estate

Facial recognition also has the potential to revolutionize commercial real estate access systems and security. Yet, privacy advocates express concerns about how this technology might be used. Earlier this year, New York, a multifamily property owner faced criticism from tenants who feared that facial recognition scanners might be used to surveil their activities.

In May 2019, San Francisco became the first city pass a law prohibiting police from using facial recognition. And a few days later, New York lawmakers proposed a ban on facial recognition by landlords in residential buildings.

Video Surveillance in Commercial Real Estate

Although facial recognition technology might be cutting edge, many of the underlying legal issues are not new. Facial recognition software might be new territory, but video surveillance and use of humans for “facial recognition” is not. For decades landlords have used video surveillance both to determine criminal activity and fraudulent tenant activity and to identify criminals.

Video surveillance and facial recognition involve similar landlord duties and legal concerns. Although the specifics may vary depending upon the location and type of property, landlords owe tenants a duty to provide a safe environment in which to live or work. Regardless, providing a safe environment for tenants is a good business practice.  Video surveillance has been an easy means of creating a safer environment by both deterring criminal activity and helping landlords and law enforcement identify wrongdoers.

Sometimes, the video is monitored real-time through closed-circuit television (CCTV) as a crime prevention measure. Other times, it is stored for access should the need arise. The videos always have been used to identify criminals, but until recently, that identification did not involve facial recognition.

Video surveillance also can save landlords money, which can limit rent charges. HUD guidelines for Security Planning for HUD-Assisted Multifamily Housing encourage CCTV under some circumstances, noting that “[w]hile initially costly, CCTV may be more economical than such alternatives as design modifications or security patrols.”

Legal Concerns of Video Surveillance in Commercial Real Estate

Although video surveillance has become ubiquitous in banks, stores, elevators, parking garages, and building common areas, it isn’t without legal concerns. Landlords need to balance their interests in crime prevention against tenant private interests. And, as discussed in Smart Use of Smart Tech in Commercial Real Estate: Wiretapping Laws, when the video camera includes audio recording, there are additional concerns under wiretapping laws.

Besides providing security, landlords may legally use video surveillance to watch who is entering apartment units so it can determine whether a tenant is occupying a property or whether, instead, there is an unlawful sublease. Video cameras also can provide valuable evidence to both landlords and tenants in the case of slip and fall personal injury cases.

But video surveillance may an illegal invasion of privacy when cameras are positioned so they can see inside a rental unit. Video surveillance inside of bathrooms or other locations where individuals might be in a state of undress is unlawful. Recent allegations that Airbnb hosts have installed video cameras to illegally spy on guests range from concerning to creepy.

Besides privacy concerns, video surveillance might create a landlord duty where it otherwise would not exist. Landlords who install cameras should regularly review the video to determine if it reveals security or safety concerns. Otherwise, an injured tenant might be able claim landlord negligence if video surveillance revealed a long-standing safety issue which the landlord did not address.

How landlords use video surveillance also can create legal issues. It is illegal to use video surveillance for racial or ethnic profiling. Landlords need to exercise caution when publicizing shots from their surveillance footage to catch criminals; erroneously identifying an innocent person as a suspect could result in defamation claims. And, any video of sufficient quality can be used for facial recognition, which raises additional privacy concerns.

Landlord Guidelines for Video Surveillance

Regardless of the concerns, video surveillance is not likely to go away, nor is it likely that facial recognition technology will be abandoned. To maximize the benefits and minimize the risks of this technology, landlords can follow these guidelines:

• Surveil only Public Areas. Landlords should position cameras so there is no possibility that individuals might be viewed in an area where they have a reasonable expectation of privacy. This not only includes apartments, but it also might include closed-door offices and other areas typically viewed as private.

• No Cameras in Bathrooms, Bedrooms, Locker Rooms, Dressing Rooms, or other Sensitive Areas. Cameras never should be placed in an area where there is a possibility of viewing an individual in a state of undress.

• Use Extreme Caution with Audio Recording. Audio recording features in video cameras raise wiretapping law concerns. Audio recording features should be disabled unless audio recording is necessary and legal counsel has advised it is lawful.

• Notify People of Video Surveillance. Where cameras are not obvious, posted notifications of video surveillance may be effective not only in increasing their crime deterrence effect but also in minimizing later complaints of invasion of privacy. Landlords who use video surveillance in common areas might consider including this notice in tenant leases or building rules. Include a consent for video surveillance in the “new hire packet” for employees.

• Maintain Video Equipment and Data. Keep video equipment in working order. Where video is stored in the cloud, install security updates and confirm that data is secure.

• Review Video. Where video is not viewed real-time via CCTV, landlords should regularly review video for safety and security concerns and should promptly address those concerns.

• Include Data Retention (and Deletion) in a Document Retention Program. Like all business documents, video surveillance footage should be maintained for a standard period of time and deleted on a pre-established schedule unless there is a particular reason to maintain specific footage.

• Establish Written Policies for Use of Video. Landlords should establish and communicate policies for use of video surveillance footage. Tenants and employees who know in advance that footage might be provided to law enforcement or that facial recognition software might be used will have weaker grounds for complaint later.

Facial Recognition – Not Such a New Frontier

Technology has enabled scientists to determine the secret of Stradivari’s instruments. This knowledge can be used for good – to provide better quality modern violins or for bad – to create more realistic Strad forgeries.

Technology also enables computers to decode the unique features of human faces. Although video surveillance and facial recognition can be used to invade tenants’ privacy, they also can create a safer work and living environment. Through careful use of technology, strict policies on use of video footage, and an open line of communication with tenants, video surveillance can provide an economical means of both deterring unlawful activity at commercial real estate.

This series draws from Elizabeth Whitman’s background in and passion for classical music to illustrate creative solutions for legal challenges experienced by businesses and real estate investors.