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BILL AS INTRODUCED 2007-2008

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S.103

Introduced by   Senator Sears of Bennington District, Senator Shumlin of Windham District and Senator White of Windham District

Referred to Committee on

Date:

Subject:  Court procedure; nuisance suits involving photographic surveillance

Statement of purpose:  This bill proposes to prohibit photographic surveillance by ordinary citizens and permit a person who has been aggrieved by such surveillance to bring a nuisance suit against the person who conducted the surveillance.  Law enforcement, authorized private investigators and security guards, and the media are exempt.

AN ACT RELATING TO NUISANCE SUITS INVOLVING PHOTOGRAPHIC SURVEILLANCE

It is hereby enacted by the General Assembly of the State of Vermont:

Sec. 1.  12 V.S.A. chapter 205 is added to read:

Chapter 205.  Nuisance Suits Involving

Photographic Surveillance

§ 5796.  LEGISLATIVE FINDINGS AND PURPOSE

The general assembly finds that photographic surveillance of private citizens by other private citizens raises unique concerns about privacy.  While a person has a reasonable expectation of privacy within his or her own home, once that person steps outside the home, that person has arguably exposed himself or herself to public view and can no longer retain an expectation of privacy.  However, while a person may expect to be seen by a neighbor or passerby when the person steps into his or her yard or driveway, he or she does not expect to be under continuous photographic surveillance by a neighbor or other person.  When photographic surveillance of a person on his or her own property becomes pervasive, it can unreasonably and substantially interfere with a person’s use and enjoyment of the person’s own property.  Simple things such as a backyard barbecue or washing the car in the driveway take on an ominous tone when someone is recording every moment for some unknown future use.  Therefore, the general assembly seeks to qualify that such spying behavior can be considered a private nuisance under Vermont law.  The general assembly recognizes that surveillance technology has provided communities with potentially useful tools for preventing, deterring, and investigating crimes; however, such surveillance should be conducted by the proper authorities and balanced with individuals’ desire and expectation to live in a community in which they are not spied upon without a legitimate law enforcement or other appropriate purpose.

§ 5797.  DEFINITIONS

As used in this chapter:

(1)  “Bona fide private investigator or bona fide security guard” means an individual lawfully providing services, whether licensed or unlicensed, pursuant to sections 3151 and 3151a of Title 26.

(2)  “Course of conduct” means a pattern of conduct composed of three or more acts over a period of time evidencing a continuity of purpose.

(3)  “Media” means newspapers, magazines, journals, press associations, news agencies, wire services, radio, television, and any printed, photographic, mechanical, or electronic means of disseminating news and information to the public.

(4)  “Photographic surveillance” means a course of conduct involving the recording of the activities of another person for the purpose of spying upon the person.  When a person records the activities of another, a visual image or audio recording is preserved through the use of a camera, video equipment, or other technology.

§ 5798.  PHOTOGRAPHIC SURVEILLANCE CONSTITUTING A

               NUISANCE

(a)  Except as otherwise provided in this chapter, no person shall interfere with the use and enjoyment of another’s property by intentionally engaging in photographic surveillance of the person or his or her visitors while they are located on property owned or leased by the person.

(b)  There shall be a rebuttable presumption that conduct in violation of subsection (a) of this section constitutes a nuisance.  The frequency and duration of the surveillance, the social utility of the defendant’s conduct, and the motive of the defendant may be factors in considering whether the defendant’s interference with the use and enjoyment of another’s property is unreasonable and substantial.

(c)  This section does not prohibit a person from conducting photographic surveillance of property which the person owns or leases.  Such surveillance shall be conducted in a manner that minimizes surveillance of other properties that are owned or leased by others.

(d)  This section shall not apply to law enforcement, a bona fide private investigator, a bona fide security guard, or the media while engaged in its official role as such unless the person conducting the photographic surveillance acted with malicious intent.

(e)  All remedies available at equity and at law for nuisance shall apply.



Published by:

The Vermont General Assembly
115 State Street
Montpelier, Vermont


www.leg.state.vt.us