NEW PRIVACY LAW

On August 16, 2017, Governor Andrew M. Cuomo signed legislation to crack down on the unauthorized invasion of privacy by video surveillance. Following reports of cameras being installed to unlawfully videotape neighboring private property, this bill (S.870A/A.861A) establishes a private right of action for damages for an unlawful invasion of privacy in an individual's backyard pursuant to an amendment to the Civil Rights Law adding section 52-a.

According to the Assembly report:

"In 2003, Stephanie's Law was signed into law. This bill seeks to close a
gap in that law. Stephanie's Law was named after Stephanie Fuller, a
woman who discovered that she was being secretly videotaped in her
bedroom by her landlord. This law sought to expand protections of priva-
cy to include incidents where voyeurs used new types of technology.

Stephanie discovered that she was being videotaped by her landlord when
her boyfriend noticed strange wires coming out of the smoke alarm in her
bedroom. Because her landlord used a video camera that was not filming
Stephanie through her window, he could not be charged with violating New
York's "Peeping Tom" laws.

Under Stephanie's Law, unlawful Surveillance is now a Class E felony,
punishable by up to four years imprisonment for first time offenders,
and up to seven years for repeat offenders (N.Y. Crim. Pen. L. 250.5).

Several other states have also enacted their own versions of Stephanie's
Law, including: Washington, Tennessee, Wisconsin, Virginia, California,
and Illinois. All of these anti-voyeurism laws focus their protection of
privacy on the physical location where the incident occurred rather than
on the individual privacy invasion committed.

Currently, New York contains no restrictions to control videotaping
which monitors a neighbor's back yard. Penal Law Sections 250.40 et seq.
only establishes criminal penalties for unlawful video surveillance when
the videotaping occurs in a setting with a "reasonable expectation of
privacy" (i.e. a bathroom or changing room), or if a perpetrator had to
trespass on property to videotape or install a camera.

In at least one instance, a family has been subject to undue stress and
concern for their young children's safety when they were subject to
constant camera surveillance while swimming or sunbathing in their own
backyard by an adjoining neighbor who is a registered sex offender.
However, because New York State law provides no protection from unwar-
ranted and potentially dangerous video observation and recording, there
is little that can be done to prevent this unnerving intrusion.

This legislation would help to ensure that the rights of adjoining land-
owners are subordinate to the rights of individuals who wish to enjoy
backyard recreational activities with a certain expectation of privacy,
without being subject to annoying or harassing behavior.  Owners who do
not care about their neighbor's video imaging can authorize such obser-
vation via written consent. No right of privacy is afforded when the
imaging is done by a law enforcement officer in the course of their
official duties."