California Court of Appeal Upholds Video Surveillance Obligation for Cyber Cafes

In response to the growing number of cyber cafes in the city and an increase in crime associated with these cafes, the city council of the City of Garden Grove adopted an ordinance which, among other provisions, required cyber cafes to install a video surveillance system that would record and playback the activity and physical features of persons or areas within the premises, as well as all entrances and exit points and all interior spaces, excepting bathroom and private office areas. The system would be subject to inspection by the city during business hours and the videotape had to be maintained for a minimum period of 72 hours. Cyber cafe owners challenged the ordinance, arguing that this video surveillance requirement infringed free speech and privacy rights protected by the First Amendment and Art. I, §§1 and 2 of the California Constitution.

The Court of Appeal held that the video surveillance system did not affect First Amendment activity any more than does the presence of an adult employee or security guard. The presence of an adult employee or security guard was another of the ordinance’s requirements. On this issue, the court found that staffing requirements are content-neutral, are narrowly tailored to serve a significant governmental interest, and leave open alternative channels for communication than the cyber café. The ordinance did not require video surveillance of e-mail or images from the Internet appearing on the customer’s computer screens, but only that the system be capable of showing the activity and physical features of persons or areas within premises. The ordinance also did not allow for inspection of the tape on demand. The city also admitted that it could not take possession of the tape without a search warrant. In light of these limitations, the court found that the video surveillance requirement is a content-neutral manner restriction, narrowly tailored to advance the city’s legitimate interest in public safety and deterrence of gang violence.

As regards the right to privacy set forth in Article I, Section 1 of the California Constitution, the court found that plaintiffs made only general references to cases involving the right of privacy, and that they did not establish that the conditions for a privacy invasion are met, i.e. (1) that persons in a public retail establishment have a protected privacy interest in either their activity on the premises or their physical features, (2) that any reasonable expectation of privacy would attach in such circumstances, (3) that the asserted invasion can considered serious, and (4) even if the privacy interest both existed and was invaded, that the governmental interest sought to be advanced does not make the minimal intrusion constitutionally permissible.

The court found customers did not have a legally protected privacy right in their activity on the premises or their physical features. Referring to Hill National Collegiate Athletic Assn. (1994, 7 Cal. 4th 1, 35), the court found that there are only two classes of legally recognized privacy interests: (1) interests in precluding the dissemination or misuse of sensitive and confidential information (‘informational privacy”), and (2) interests in making intimate personal decisions or conducting personal activities without observation, intrusion or interference (“autonomy privacy”). However, according to the court, (1) a person’s physical features are not confidential nor are activities on the premises of a public retail establishment, and (2) nor does the observation of persons using a computer in a cyber cafe involve intrusion either on the making of an intimate personal decision or on the conduct of a personal activity.

Furthermore, the court found that the cyber café customers lack a reasonable expectation of privacy in light of the near ubiquitous use of video surveillance in retail establishments.

Accordingly, the court found that the plaintiffs did not show a likelihood of success on the merits and so the trial court abused its discretion when it preliminary enjoined the video surveillance requirements of the ordinance.