Unlawful Surveillance in New York

Unlawful surveillance means intentionally installing a device to view or record someone’s sexual or intimate parts or to view or record a person engaging in sexual acts, in a place where they expected privacy.

Examples

Examples of unlawful surveillance include:

Setting up viewing devices in another person’s private home.
Setting up viewing devices in a place where there is an expectation of privacy, such as a bathroom, a hotel room, a locker room, a changing room, or a designated breastfeeding room.
Utilize viewing devices with the intention of seeing underneath the clothes of a non-consenting person (i.e., “upskirt” recorders).

The federal statutes defining unlawful surveillance are included in Article 250 of the Penal Law Code.

Statute 250.45 – Unlawful Surveillance in the Second Degree

It is defined as installing a device to view or record someone undressing or engaged in a sexual act without their consent, in a place where they expected privacy. This includes recording someone in a private residence, in any other place where privacy is assumed, or in a way that intentionally views underneath their clothing without their consent.

This recording could be for the defendant’s own sexual gratification, for the sexual gratification of a third party, for financial gain, for the purposes of humiliating or defaming the recorded person, or for no obvious purpose at all.

S 250.50 – Unlawful Surveillance in the First Degree

This essentially states that if you are convicted of unlawful surveillance more than once within the span of ten years, you can be convicted of unlawful surveillance in the first degree, which carries a harsher penalty

The Elements of Unlawful Surveillance

Under New York State criminal law, Article 250, unlawful surveillance in the second degree is a Class E felony, while unlawful surveillance in the first degree is a Class D felony.

The “elements” of unlawful surveillance are the things that a jury must be convinced of in order for you to be found guilty. To be convicted of unlawful surveillance, the following must be proven beyond a reasonable doubt:

You installed a viewing device without notice or consent.
You used that device to record or view the sexual or intimate areas of a non-consenting person, and/or to view them engaging in sexual acts.
You installed a viewing device in a place where a person had a reasonable expectation of privacy.

Let’s discuss these elements in more detail.

Element #1: Installation of Viewing Device

The definition of Element 1 is the installation of a viewing device without notice or consent.

This element means that you either physically installed a viewing device yourself, or had someone install a viewing device on your behalf. A key part of this element is that you installed this viewing device without providing notice or obtaining the consent of the viewer or recorded person.

Example: Gina went to a small boutique clothing store and selected a few items of clothing to try on. The store’s owner had a camera installed in the dressing room. However, there was no posted notice that there were cameras in the dressing room. Gina found out that she was being recorded in the dressing room and pressed charges for unlawful surveillance.

Element #2: Viewing the sexual/intimate areas of a person

The definition of Element 2 is the installation of the device in a way that would allow the viewing or recording of sexual/intimate areas and/or sexual acts.

This element means that the viewing or recording device was set up in a place where people would be undressing and/or engaging in sexual acts with the assumption of privacy. It is important to note that it does not matter why the viewing or recording device was set up, or what motivated the person viewing or recording the footage.

Example: Let’s return to Gina’s case. The owner of the clothing store claimed that the camera in the dressing room was only there to monitor for shoplifting. However, because the camera was not announced, and allowed the owner of the store to view Gina getting undressed without her consent, it did not matter what the store owner said about why he installed the camera.

It is important to note that “viewing the sexual/intimate areas of a person” can include situations in which the person is engaging in consensual sexual acts.

Example: Marcia agreed to have consensual sex with Marcus. However, unbeknownst to Marcia, Marcus had set up a secret video camera in his room in order to record their encounter. In doing so, Marcus obtained a video of their encounter through unlawful surveillance, since Marcia did not consent to be recorded and had a reasonable expectation of privacy.

Element #3: Reasonable Privacy

The definition of Element 3 is the installation of the viewing device in a place where the viewer or recorded person had a reasonable expectation of privacy.

This element means that the viewing or recording device was set up in a place where the recorded person felt that they could undress privately. This includes private residences, but also places that are generally expected to be private, such as bathrooms and changing rooms.

This means that in order to be convicted of unlawful surveillance, it needs to be proven that the place where the person was viewed or recorded actually had a reasonable expectation of privacy.

Example: Jenny was sunbathing topless in Central Park. A passing stranger took a picture of her and the field around her. She claimed that this constituted unlawful surveillance since a photograph was taken of her intimate areas. However, because she was in an area with no expectation of privacy, she was not able to prove that unlawful surveillance had occurred.

What are some related crimes?

There are two other important statutes to consider when facing unlawful surveillance charges. One is S 250.55, which covers the dissemination of an unlawful surveillance image in the second degree. This covers intentionally distributing an image that was obtained through unlawful surveillance, as defined above.

The other is S 250.60, which covers the dissemination of an unlawful surveillance image in the first degree. This statute carries a harsher penalty than S 250.55. It applies to anyone who is convicted of disseminating unlawful surveillance images more than once in a ten year period.

Other related crimes include eavesdropping, aggravated harassment, and endangering the welfare of a child.

Related Offense #1: Dissemination of Unlawful Surveillance Images, Second Degree

The definition of dissemination of unlawful surveillance images in the second degree is the distribution of any images obtained through unlawful surveillance.

This applies to any time an image or video that was knowingly obtained through unlawful surveillance changes hands between two or more people. Any time you share, post, or otherwise spread the image, and you are liable for the dissemination of unlawful surveillance images.

Example: Norman put a hidden camera in the ladies’ locker room at his work. He then sent the images of his coworkers changing to his friend. He can now be charged with both illegal surveillance and the dissemination of unlawful surveillance images because he both took and distributed those images.

Related Offense #2: Dissemination of Unlawful Surveillance Images, First Degree

The definition of dissemination of unlawful surveillance images in the first degree is committing and being convicted of a said crime more than once in a ten year period.

Essentially, dissemination of unlawful surveillance images in the first degree is an increased charge for repeat offenders.

Example: Let’s return to the case of Norman. After being charged and convicted of the dissemination of unlawful surveillance images once, he decided to plant yet another hidden camera in the bathroom of his new workplace, and then send the images from the camera to a friend. He can now be charged in the first degree.

Related Offense #3: Eavesdropping

The definition of eavesdropping is intentionally overhearing or recording a conversation without consent, by means of a mechanical device.

Eavesdropping means any time that you intentionally access a private conversation between two or more people. This can mean the interception of electronic communications, like emails, texts, or phone calls, but it can also refer to recording conversations two people have in person with a reasonable expectation of privacy.

Example: Let’s return once more to Norman’s story. He frequently used his taping not only to see his coworkers undress but to listen in on their conversations and glean private information about their lives. The prosecution can now argue that this constitutes eavesdropping.

Related Offense #4: Aggravated Harassment in the Second Degree

The definition of aggravated harassment in the second degree is communicating with the intent to threaten, to such an extent that another person would reasonably fear for their safety, the safety of their property, or the safety of their family members.

In this context, aggravated harassment could be charged if an image obtained through unlawful surveillance is used to threaten harm. This could include threatening the livelihood of a person.

Example: Here we can return to the case of Marcia and Marcus. Soon after their encounter, Marcia and Marcus broke up, which made Marcus angry. He decided that he would threaten to send the tape he secretly made to Marcia’s workplace and to her family members, as well as posting it online. He was therefore charged with using the unlawfully obtained images to commit aggravated harassment in the second degree.

As seen above, this charge is particularly applicable in cases of “revenge porn.” When unlawfully obtained images are used to harm, defame, or intimidate, it can be argued that this constitutes an additional charge of aggravated harassment.

Related Offense #5: Endangering the Welfare of a Child

The definition of endangering the welfare of a child is to act in a manner that is likely to injure the physical, mental, or moral welfare of anyone under seventeen years old.[3]

This related charge may apply if the person being viewed or recorded surreptitiously is a minor, or anyone under the age of seventeen. It could be argued that secretly viewing or recording the sexual and/or intimate areas of a minor could cause mental or emotional harm.

Example: Chad hacked into sixteen-year-old Jenny’s computer and used the camera to take images of her changing. Jenny found out that he had done so, and was severely distressed. Chad was then charged with endangering the welfare of a child.

Impactful Cases

There are several impactful cases when it comes to unlawful surveillance.

In 2007, Peter Barta, a public defender at the Legal Aid Society, was charged with taking video footage of his female coworkers while they were undressing. He was ultimately convicted of the felony charge (unlawful surveillance in the second degree) and disbarred.

Another high-profile case happened in 2013. Colgate University student Michael J. Piznarski had a sexual encounter with a woman which he secretly recorded. He then threatened to publicly release the recording if the woman didn’t have sex with him again. Ultimately, she relented, and he secretly recorded that encounter as well.

The woman went to the police, and an investigation and trial proceeded. Piznarski was convicted, among other things, of two counts of unlawful surveillance in the second degree. He was sentenced to 1-3 years in prison and permanently placed on the sex offender registry.

What agencies detect, investigate, and prosecute this crime?

Unlawful surveillance cases are primarily investigated by the NYPD and other local police departments, and prosecuted by the District Attorney’s Office. In addition, the New York State Legislature has passed a number of laws pertaining to unlawful surveillance (such as the 2003 Stephanie’s Law, which specifically targeted video voyeurism and secret taping).

In certain cases (like when the crime takes place on federal property, or when it involves multiple jurisdictions/crossing state lines) the federal government will become involved.

What are the statutory penalties for unlawful surveillance?

Unlawful surveillance in the second degree is a Class E felony. It is punishable by up to four years in prison. Unlawful surveillance in the first degree is punishable by up to seven years in prison.

Dissemination of an unlawful surveillance image in the second degree is a Class A misdemeanor and is punishable by up to a year in prison and/or a fine of up to $1,000.00. Dissemination of an unlawful surveillance image in the first degree is a Class E felony and is punishable by up to four years in prison and a $5,000.00 fine.

Sentencing Enhancements

The penalties you face may be steeped in a number of instances. Specifically, you may face heightened penalties if you:

Have been convicted of unlawful surveillance or the dissemination of an unlawful surveillance image within the last ten years;
Are being charged with harassment as well as unlawful surveillance;
Are being charged with the unlawful surveillance of a minor.

If your case falls into one of these categories, then the maximum sentence will increase to seven years, not including the time you may accrue from additional charges. The maximum fine will also increase to $5,000.00, not including any additional damages and/or attorney fees.

What are some of the additional consequences of being convicted?

Beyond potential jail time and fees, there are significant consequences that come from being convicted of unlawful surveillance. For one, this conviction carries a significant social stigma, and maybe a serious hit to your reputation. Depending on your profession, you may also lose your job and even your license to practice in your field.

Because unlawful surveillance is a felony, it will be a permanent mark on your record and may prohibit you from a number of opportunities (such as employment, the ability to participate in governmental programs, receive benefits, or live in government housing, and the ability to vote.) If you are a college student, you may be expelled from your school under Title IX.

It is extremely important to note that if you are convicted of unlawful surveillance in the first or second degree, you are often required to register with the New York State Sex Offender Registry. This will have an enormous impact on your life and future opportunities, as well as the life and opportunities of your family.

What are some defenses against the charges?

There are a number of strategies an attorney might use in order to defend someone being accused of unlawful surveillance. In order to get a conviction, the burden of proof is on the prosecutor to prove that the defendant is guilty of all of the elements of the crime.

In this case, that means that the prosecutor must prove that you installed the viewing device without notifying or receiving the consent of the undressing person. A defense attorney may question the validity of that claim by arguing that you never installed the device, or that there was, in fact, notice or consent.

A defense attorney can also examine the process by which the device and any other evidence were seized. In order to be legitimate and admissible in Court, all evidence must be seized in a lawful manner. If there were any inappropriate or protocol-violating actions during the seizure, the evidence might not be admissible.

Legal Defenses

Defense #1: There is no proof the device belonged to you.

One of the defenses for unlawful surveillance that the prosecution cannot prove the device belonged to you, that you placed it there or caused it to be placed there, and/or that you viewed or recorded the images.

Example: Peter was charged with unlawful surveillance. The prosecution alleged that he placed a camera in the bathroom of his workplace and viewed images from the bathroom on a computer in the back office. However, the recording device was not registered to Peter, and the computer was a non-password-protected work computer that all of the employees use. The defense argued that it was therefore not possible to say for sure that Peter was the one who placed the camera or viewed the images.

Defense #2: There is proof of consent and/or notice.

Another defense for unlawful surveillance is that there is proof of notice and consent to record.

Example: George and Patricia were dating. George recorded one of their sexual encounters. Patricia claims that he did so without her knowledge whatsoever, but George says that it was consensual and that they discussed it. George produces text messages from the night of the encounter explicitly discussing filming the encounter with enthusiastic consent. The defense argues that this casts reasonable doubt on whether the filming was non-consensual.

Defense #3: The seizure of the recording device was unlawful.

The third defense for unlawful surveillance is if the seizure of the recording device or any other evidence was unlawful. In a non-emergency situation, it is unlawful for an officer to search your property without a warrant (as long as you have not yet been arrested.) If any evidence was collected under those unlawful circumstances, it might not be admissible in court.

Example: Officers received an anonymous call claiming that Henry was recording underneath women’s skirts on the subway. They went to his home without a search warrant, to see if he would consent to a search.

When they got there, his housekeeper let them in. They searched his room and found a small camera, as well as unlawful surveillance images. This led to Henry’s arrest. However, Henry’s housekeeper was not capable of giving them legal consent to enter the home, making the search and seizure illegal.

If you are being charged with unlawful surveillance, it is crucial to get a good attorney on your side as soon as possible.

Unlawful surveillance is a very serious charge with very serious consequences. An attorney can advocate for you at every step of the process and can fight for the best possible outcome. From questioning, interrogation, and investigation to negotiation and trial strategy, the skill of a well-versed criminal attorney can make all the difference.

Our attorneys have years of experience in criminal law and can make a clear and compelling case on your behalf. Don’t make yourself vulnerable to the whims of the prosecution. Enlist an advocate today.

Call us for help.

For questions about unlawful surveillance charges, or to discuss your case confidentially with one of our criminal defense attorneys, do not hesitate to contact us. We have local criminal law offices in your area.