One of the cornerstone issues of the first 16 years of the 21st century has been privacy. Phones, computers, the TSA, Facebook advertising, drones; they all have had a significant impact on our understanding of privacy. As technological capability advances, so to does our concern for privacy. Technology has always advanced much faster than laws do, and it takes a while for them to catch up. As an example, Google has faced numerous lawsuits in the past few years from those claiming that they scrape emails sent over the server, sometimes for targeted marketing campaigns. The use of cameras, particularly in department stores, has also come under fire.
More and more people are starting to be aware of what appears to be cameras looking in on them while they try on clothes. Some who have worked in these stores claim that these are false; the dome doesn’t have a camera in it, but is made to appear that it does. However, shoppers do not know this, and thus feel intruded upon by the store. States have different, and sometimes conflicting, laws when it comes to the usage of cameras in department store dressing rooms.
Why Do Stores Monitor Dressing Rooms?
Loss prevention. Some stores, such as Macy’s or Kohl’s, experienced a high volume of theft and theft attempts, and so had to do something to combat it. Most noted that these theft attempts originated from shoppers taking a pile of clothes into the dressing room and confiscating a few of them in their bag or purse.
A survey from the National Retail Federation reveals some surprising statistics in regards to shoplifting. Perhaps most surprising is the high rate of employee theft. Shopper’s comprised 38 percent of reported theft, while employees were not far behind at 34 percent. In fact, employees stole nearly six times what the average shopper did in terms of monetary value. This is an explanation for why 70 percent of stores have video cameras in their main areas. A plainclothes detective is present at 33 percent of stores as well. Cameras and security personnel of course cost money, and nearly 40 percent of the stores which participated in the survey said their loss prevention budget increased from one year to the next.
There are all sorts of inherent biases when it comes to men’s and women’s shopping habits, so it may surprise some to know that men stole just as much as women did. Despite this statistic, anecdotal evidence suggests that women’s dressing rooms are monitored much more heavily than the men’s. It’s tough to tell how prevalent this is, but certainly suggests an invasion of privacy heavily tilted towards females. The laws for this kind of monitoring vary by state, and are scrutinized considerably.
What Are the Laws for Monitoring Dressing Rooms?
As of now, only 13 states (Alabama, Arkansas, California, Delaware, Georgia, Hawaii, Kansas, Maine, Michigan, Minnesota, New Hampshire, South Dakota, and Utah) expressly prohibit the use of any monitoring system in dressing rooms. Some states, such as Massachusetts, are contradictory in their laws, as we were able to find a law that said no monitoring of any sort was allowed in dressing rooms, and another that allows it so long as customers are warned of it first. We’re not sure which law was enacted first, or if one outweighs the other, but given that it is not on that list of 13 states, it is likely that the warning of customers is the law.
That warning usually comes in the form of a sign posted outside of the dressing rooms, whose language can vary and sound quite ambiguous at times. In the other 37 states, laws require signage such as these to posted so that customers entering dressing rooms know they are potentially being monitored. Usually, customers are monitored by someone of the same gender as they, but there are times when this may not be the case.
This monitoring must be done as loss prevention only. Any motive other than this is illegal and would cause the store to be fined heavily. No, it is not legal for someone to snap cell phone pics of someone else in a changing room, and no, it is not legal for security personnel to record dressing rooms and then take that film home. If this were to happen, it would be in direct violation of the Video Voyeurism Prevention Act, and would result in criminal prosecution for that person. However, even though there is usually nothing sinister occurring, many people still feel as though they have been violated, because there is the reasonable expectation of privacy when one goes into a dressing room and closes the door.
One may find it contradictory, even hypocritical, for customers to be monitored so much more closely than employees. As previously mentioned, employees steal an average of $715 worth of product, while customers steal an average of $129, far less than those getting paid by the employer.
What Laws Are There Involving Privacy?
Other than the aforementioned VVPA, there have been numerous cases regarding privacy that have set precedent in terms of the application of law and the Constitution. That phrase, “reasonable expectation of privacy,” was first put on record in the case of Katz v. United States(1967), which involved federal agents attaching an eavesdropping device to a payphone on suspicion that Katz was illegally transmitting gambling information. The Supreme Court overturned the original conviction in a 7-1 decision on the grounds that, while there was no physical intrusion, the Fourth Amendment, “protects people, not places.”
The laws in each state regarding the monitoring of dressing rooms, as well as the overall use of video devices in public and private spaces, are somewhat fluid in terms of their language and the specificity of the law’s application. In general, it’s all about the objective of the monitoring. It bears repeating that any filming or photographing of a person without their knowledge or consent, in an area in which they have a reasonable expectation of privacy, is expressly forbidden; especially if said filming is sinister in nature.
Privacy and law enforcement, however, is a fine line to walk for police and other security personnel trying to prevent a crime. Katz was such an important ruling because it expanded Constitutional protections to include electronic surveillance devices for the first time. Improved technology means that it’s necessary for privacy legislation to be constantly reviewed and renewed. As it relates to dressing room privacy, it placed strict policy on the implementation and usage of cameras and/or loss prevention monitors.
Stores are constantly at battle with shoplifters. It was reported that they lost approximately $44 billion worth of inventory in 2014 due to sticky fingers. Because people need to conceal what they’re trying to steal, stores no longer allow people to take clothes into the restroom and changing rooms are being monitored by loss prevention employees. But growing public outcry over the idea of being watched while changing, even with the best of intentions, could see many of them changing their approach to catching and preventing theft.