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New York Bridge the Gap Session C Introduction to Video Evidence: Legal Standards and Practical Considerations January 25, 2016; 5:30 PM 9:00 PM

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EVALUATION FORM In order for us to improve our continuing legal education programs, we need your input. Please complete this evaluation form and place it in the box provided at the registration desk at
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EVALUATION FORM In order for us to improve our continuing legal education programs, we need your input. Please complete this evaluation form and place it in the box provided at the registration desk at the end of the session. You may also mail the form to CLE Director, NYCLA, 14 Vesey Street, New York, NY New York Bridge the Gap Session C Introduction to Video Evidence: Legal Standards and Practical Considerations January 25, 2016; 5:30 PM 9:00 PM I. Please rate each speaker in this session on a scale of 1-4 (1 = Poor; 2 = Fair; 3 = Good; 4 = Excellent) Carmen Giordano Presentation Content Written Materials Eric Grimes II. Program Rating: 1. What is your overall rating for this course? Excellent Good Fair Poor Suggestions/Comments: A. Length of course: Too Long Too Short Just Right B. Scheduling of course should be: Earlier Later Just Right 2. How did you find the program facilities? Excellent Good Fair Poor Comments: 3. How do you rate the technology used during the presentation? Excellent Good Fair Poor Comments: Please turn over to page 2 1 4. Why did you choose to attend this course? (Check all that apply) Need the MCLE Credits Faculty Topics Covered Other (please specify) 5. How did you learn about this course? (Check all that apply) NYCLA Flyer NYCLA Postcard CLE Catalog NYCLA Newsletter NYCLA Website New York Law Journal Website NYCLA CLE Other (please specify) Google Search 6. What are the most important factors in deciding which CLE courses to attend (Please rate the factors 1-5, 1 being the most important). Cost Subject matter Location Date and Time Provider Organization of which you are a member Other 6. Are you a member of NYCLA? Yes No III If NYCLA were creating a CLE program specifically tailored to your practice needs, what topics or issues would you want to see presented? 2 NYCLA CLE I NSTITUTE NEW YORK BRIDGE THE GAP SESSION C: INTRODUCTION TO VIDEO EVIDENCE: LEGAL STANDARDS AND PRACTICAL CONSIDERATIONS Prepared in connection with a Continuing Legal Education course presented at New York County Lawyers Association, 14 Vesey Street, New York, NY scheduled for January 25, 2016 Faculty: Carmen Giordano, Giordano Law Offices, PLLC; Eric D. Grimes, Video Extraction, Inc. This course has been approved in accordance with the requirements of the New York State Continuing Legal Education Board for a maximum of 4 Transitional and Non-Transitional credit hours: 0.5 Ethics; 3.5 Professional Practice. This program has been approved by the Board of Continuing Legal education of the Supreme Court of New Jersey for 4 hours of total CLE credits. Of these, 1.0 qualify as hours of credit for ethics/professionalism, and 0 qualify as hours of credit toward certification in civil trial law, criminal law, workers compensation law and/or matrimonial law. ACCREDITED PROVIDER STATUS: NYCLA s CLE Institute is currently certified as an Accredited Provider of continuing legal education in the States of New York and New Jersey. Information Regarding CLE Credits and Certification New York Bridge the Gap Session C Introduction of Video Evidence: Legal Standards and Practical Considerations January 25, 2016; 5:30 PM to 9:00 PM The New York State CLE Board Regulations require all accredited CLE providers to provide documentation that CLE course attendees are, in fact, present during the course. Please review the following NYCLA rules for MCLE credit allocation and certificate distribution. i. You must sign-in and note the time of arrival to receive your course materials and receive MCLE credit. The time will be verified by the Program Assistant. ii. iii. iv. You will receive your MCLE certificate as you exit the room at the end of the course. The certificates will bear your name and will be arranged in alphabetical order on the tables directly outside the auditorium. If you arrive after the course has begun, you must sign-in and note the time of your arrival. The time will be verified by the Program Assistant. If it has been determined that you will still receive educational value by attending a portion of the program, you will receive a pro-rated CLE certificate. Please note: We can only certify MCLE credit for the actual time you are in attendance. If you leave before the end of the course, you must sign-out and enter the time you are leaving. The time will be verified by the Program Assistant. Again, if it has been determined that you received educational value from attending a portion of the program, your CLE credits will be pro-rated and the certificate will be mailed to you within one week. v. If you leave early and do not sign out, we will assume that you left at the midpoint of the course. If it has been determined that you received educational value from the portion of the program you attended, we will pro-rate the credits accordingly, unless you can provide verification of course completion. Your certificate will be mailed to you within one week. Thank you for choosing NYCLA as your CLE provider! New York County Lawyers Association Continuing Legal Education Institute 14 Vesey Street, New York, N.Y (212) New York Bridge the Gap Session C Introduction to Video Evidence: Legal Standards and Practical Considerations Monday, January 25, :30 PM to 9:00 PM Faculty: Carmen Giordano, Giordano Law Offices, PLLC; Eric D. Grimes, Video Extraction, Inc. AGENDA 5:00 PM 5:30 PM Registration 5:30 PM 5:40 PM Introductions and Announcements 5:40 PM 9:00 PM Presentation and Discussion. ***There will be a 10 minute break during the program GIORDANO LAW OFFICES, PLLC & VIDEO EXTRACTION, INC. VIDEO EVIDENCE: LEGAL STANDARDS & PRACTICAL CONSIDERATIONS I. INTRODUCTION, VIDEO EVIDENCE, THE GAME CHANGER The network of governmental and private video surveillance in New York City, the U.S.A. and the world has increased astronomically. Since 9/11, the number of surveillance cameras in the city, including those in the New York City Police Department s Argus system and in thousands of private systems, has substantially multiplied the quantity of available video evidence for use in litigation. Continuous advances in technology have also significantly improved the quality and types of available video evidence. Despite these quantitative and qualitative advances, however, attorneys have yet to make maximum use of available video surveillance materials. The material provided here is designed to assist attorneys in taking advantage, where beneficial to do so, of perhaps the best evidence available to prove a case. Immediate acquisition of available video from both private and governmental sources is an essential element in developing a case at the investigative stage. Once obtained, authenticating, or laying a proper evidentiary foundation for, video evidence is essential. An overview of applicable rules, procedures and case law relating to various aspects of use of both private and public video surveillance is provided hereafter. New York State and federal rules, procedures and case law are discussed. To explain the importance of rapid action to obtain surveillance video, mechanisms to preserve and obtain both public and private video surveillance will be reviewed. Substantive evidentiary issues are explored. Finally, Detective Grimes will cover practical considerations for attorneys working with investigators and video technicians in the extraction and obtainment process. 1 II. TYPES AND CAPABILITIES OF VIDEO SURVEILLANCE An increasing number and variety of video surveillance systems are currently available. In the city, many different types of cameras are used. For example, the N.Y.P.D. Argus system, 1 outdoor long-range, vandal proof, dome, mid-range, indoor recessed, Infrared or night vision, pan tilt, and zoom surveillance cameras, and cameras with gunshot detectors, are all common examples of camera types used in the city. Surveillance cameras are generally wired into a recording device or IP network. Automated software, which organizes digital video data into a searchable database, has made surveillance camera systems far more efficient and less expensive to install and operate than formerly was the case. Additionally, video analysis software, including biometric software, 2 has increased efficiency for law enforcement purposes. In addition, many cameras are equipped with motion sensors, which greatly reduce the volume of collected data, recording only when motion is detected, thus further increasing the efficiency of surveillance data collection. Less expensive manufacturing processes and increased simplicity has greatly contributed to a proliferation of private surveillance systems everywhere. Additionally, surveillance systems may readily be customized for particular needs and surroundings. 1 The increasingly ubiquitous white boxes with cameras (approximately 870 citywide to date) are clearly labeled NYPD security cameras. Each device includes two cameras from the Pelco Corporation (owned by Schneider Electronic). They are mounted on poles known as a Tsunami QuickBridges manufactured by the Proxim Corporation, which includes a proprietary point-topoint wireless system. Feeds from the cameras are monitored from a central command center in New York s Financial District, which forms part of the Domain Awareness System, which was co-developed with Microsoft. 2 Biometric surveillance in the video surveillance context is generally defined as any technology that analyzes the physical and/or behavioral characteristics, including facial patterns and walking manner, of the subject captured on the surveillance. Facial recognition utilizes a person's facial features to identify them. The Los Angeles Police Department has installed automated facial recognition and license plate recognition devices in its squad cars, and handheld face scanners. See: 2 Detective Grimes, formerly of the N.Y.P.D. Technical Assistance Response Unit ( TARU ), 3 who has extracted and downloaded thousands of private and government videos over the course of his tenure with TARU, has encountered a virtually equal number of varying camera and recording configurations, including systems with magnification capacities approaching 1,500 feet. Night vision or Infrared ( IR ) capacity is also commonly used in surveillance systems. Generally, these systems differ in range, infrared capability, indoor or outdoor customization, IP (internet base), pan and tilt technology, and other variables. In addition to governmental and private surveillance cameras in interior and exterior spaces, the significance of private cell phone video recordings has recently been publicized in a number of high-profile police action cases. Private cameraequipped drones, with varying configurations and capabilities, present yet another example of video surveillance. 4 There has been a marked increase in cooperation between the private sector and government since 9/11 and an increasing flow of data to the government from private sources. See Larry Ellison, Digital IDs Can Help Prevent Terrorism, Wall Street Journal, Oct. 8, 2001, at A26 3 TARU provides investigative technical equipment and tactical support, including private and public video extractions, to all NYPD bureaus, as well as other city, state and federal agencies. TARU also deals with several forms of video and computer forensics. Other activities of TARU include assistance in hostage negotiations (Detective Grimes operated the mobile hostage negotiation command center), and recording police and protestors during demonstrations. The Handschu Agreement, however, restricts the recording of protest activities. Unless there is an indication that unlawful activities are occurring, routine recording of legal protests are prohibited by the Agreement. 4 Giordano Law Offices, PLLC. 3 Examples of Available & Increasingly Improving Video Surveillance Technology A. Biometrics & Facial Recognition Software According to the National Institute of Standards and Technology (NIST) 2013, testing of facial recognition algorithms showed that the accuracy of the software has improved as much as 30 percent since 2010, and it is continuing to improve. To take one example, nviso is a leading provider of emotion recognition software that interprets human facial micro-expressions and eye movements captured through video. 3D facial imaging technology with artificial intelligence is utilized to track hundreds of different facial points to recognize human emotions. The company combines the latest advancements in computer science, engineering and behavioral sciences for automatic emotion recognition in video surveillance. According to nviso, emotions can be precisely recognized by minor changes in micro-expressions in a person s face. nviso is based at the Swiss Federal Institute of Technology in Lausanne, Switzerland (EPFL). (See athttp://www.nviso.ch) The FBI's Next Generation Identification System began as a pilot program in The system allows the identification of suspects in real time. The enormous federal database is constantly developing and increasing. The following examples from the media also illustrate the increase in development and use of this software: Deranged, hammer-wielding assailant identified with NYPD facial recognition database from video surveillance data. Facial recognition technology used to determine James Foley s killer, Jihadi John. (See 4 Facial recognition software developed as password protector for phone (http://nypost.com/2013/11/26/new-password-app-recognizes-faces/) B. Drones Drone availability continues to expand as technology continues to improve and drones become increasingly less expensive to own, easier to operate and more powerful. With increasing access to military level surveillance technology, drones have the potential to become a vital tool for local law enforcement in crime prevention and intervention. Private sector application is potentially as expansive as the individual user can imagine and effectively implement. While obviously a powerful potential tool in public and private video surveillance, the thorny legal, logistical and constitutional issues are equally evident. Timothy Takahashi, Professor of Aerospace Engineering at Arizona State University provides the most thorough and cutting edge discussion of drone technology and the FAA s efforts to regulate drones. With his permission, his article: Game of Drones: The Uses and Potential Abuses of Unmanned Aerial Vehicles in the U.S. and Abroad: The Rise of the Drones --- The Need for Comprehensive Federal Regulation of Robot Aircraft, 8 Alb. Gov't L. Rev. 63 (2/6/2015), is reprinted here in its entirety and annexed as Reference Material A. C. Patent Litigation Relating to Cutting Edge Surveillance System Technology In 3rd Eye Surveillance Inc. v. the United States, 1:15-cv (U.S. Court of Fed. Claims), plaintiffs argue that the FBI, NSA and other federal agencies are utilizing surveillance systems that infringe three U.S. patents (numbers 6,778,085; 6,798,344; and 7,323,980) by developing and deploying unlicensed surveillance systems through internal sources without proper licensing. The patented technology invention includes an application that sends realtime surveillance video to emergency personnel through a communications link, as well as facial and voice recognition software. 3rd Eye argues that the federal agencies are using the patents to provide real-time surveillance video, audio recognition, facial recognition and infrared images to emergency responders and 5 defense agencies. The patents were issued in 2004 and 2008 to James Otis Faulkner, who sold the exclusive licensing rights to Texas-based 3rd Eye in III. LEGAL AUTHORIZATION FOR AND RESTRICTION OF PRIVATE VIDEO SURVEILLANCE A number of legal restrictions both authorize and constrain the implementation and use of video surveillance. Under Penal Law , no restrictions are placed on law enforcement surveillance. Private surveillance is legal so long as notice is posted that surveillance is being conducted or the security cameras or other devices are readily visible. The Penal Law proscribes video surveillance that is invasive of privacy. Private individuals making use of video surveillance must be mindful of N.Y. Penal Law Article 250 and N.Y. General Business Law 395-b. The First Amendment of the federal constitution protects photographers use of video to a certain degree. Generally, however, the courts have not constrained governmental use of public video surveillance within constantly developing constitutional parameters. 5 A. New York Penal Law, Article 250, Unlawful Surveillance: Private individuals are not permitted to hide a video camera and film people in areas where they have a reasonable expectation of privacy. The relevant statutory provisions are designed to prevent the use of video for private purposes unrelated to a reasonable need for surveillance, such as for personal gratification, private profit, harrassment or blackmail. N.Y. Penal Law This section provides that the following definitions apply to sections NYPL , , and of Article 250: 1. Place and time when a person has a reasonable expectation of privacy means a place and time when a reasonable person would believe that he or she could fully disrobe in privacy. 5 See Section C, below, for a discussion of the constitutionality of government video surveillance. 6 2. Imaging device means any mechanical, digital or electronic viewing device, camera, cellular phone or any other instrument capable of recording, storing or transmitting visual images that can be utilized to observe a person. 3. Sexual or other intimate parts means the human male or female genitals, pubic area or buttocks, or the female breast below the top of the nipple, and shall include such part or parts which are covered only by an undergarment. 4. Broadcast means electronically transmitting a visual image with the intent that it be viewed by a person. 5. Disseminate means to give, provide, lend, deliver, mail, send, forward, transfer or transmit, electronically or otherwise to another person. 6. Publish means to (a) disseminate, as defined in subdivision five of this section, with the intent that such image or images be disseminated to ten or more persons; or (b) disseminate with the intent that such images be sold by another person; or (c) post, present, display, exhibit, circulate, advertise or allows access, electronically or otherwise, so as to make an image or images available to the public; or (d) disseminate with the intent that an image or images be posted, presented, displayed, exhibited, circulated, advertised or made accessible, electronically or otherwise and to make such image or images available to the public. 7. Sell means to disseminate to another person, as defined in subdivision five of this section, or to publish, as defined in subdivision six of this section, in exchange for something of value. N.Y. Penal Law A person is guilty of unlawful surveillance in the second degree when: 1. For his or her own, or another person s amusement, entertainment, or profit, or for the purpose of degrading or abusing a person, he or she intentionally uses or installs, or permits the utilization or installation of an imaging device to surreptitiously view, broadcast or record a person dressing or undressing or the sexual or other intimate parts of such person at a place 7 and time when such person has a reasonable expectation of privacy, without such person's knowledge or consent; or 2. For his or her own, or another person s sexual arousal or sexual gratification, he or she intentionally uses or installs, or permits the utilization or installation of an imaging device to surreptitiously view, broadcast or record a person dressing or undressing or the sexual or other intimate parts of such person at a place and time when such person has a reasonable expectation of privacy, without such person's knowledge or consent; or 3. (a) For no legitimate purpose, he or she intentionally uses or i
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