The subcommittee of the Senate Committee on Judiciary was called to order by Chairman Mark A. James at 10:00 a.m., on Friday, March 5, 1999, in Room 2149 of the Legislative Building, Carson City, Nevada. Exhibit A is the Agenda. Exhibit B is the Attendance Roster. All exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.

SUBCOMMITTEE MEMBERS PRESENT:

Senator Mark A. James, Chairman

Senator Valerie Wiener

Senator Terry Care

Senator Bernice Mathews, Washoe County Senatorial District No. 1

STAFF MEMBERS PRESENT:

Janice McClure, Committee Secretary

OTHERS PRESENT:

Chairman James opened the subcommittee hearing on Senate Bill (S.B.) 34.

Chairman James stated there were some inaccurate comments attributed to him after the first hearing and that a flyer was distributed indicating the bill was trying to shut down the television news media. He said this bill attempts to address the reasonable expectation of privacy that individuals have and to examine protections in the law from the use of hidden cameras in places where a person would reasonably expect to have privacy. Chairman James continued that Senator Care had asked the Legislative Counsel Bureau (LCB) for a legal analysis of the reasonable expectation of privacy.

Senator Care said he asked LCB for Nevada case law on the elements of invasion of privacy because he believes it should be unlawful to conceal a camera in a bathroom or in a bedroom where a person has an obvious expectation of privacy. Senator Care continued he believes some jurisdictions have statutes making this type of conduct a criminal offense. He furthered existing Nevada law provides a person can file a lawsuit if he feels his privacy has been violated, but not everybody can afford an attorney. Senator Care suggested looking at language in some of the civil cases where courts discuss the elements of intrusion to see if there is some way to codify that case law into criminal statute. He said it would have to be narrowly tailored with no doubt that it applies to very rare cases where somebody has quite obviously violated a person’s privacy with hidden cameras.

Chairman James added the nature of the hidden-camera issue is of concern to the news media. He said the fact that the camera is hidden is not necessarily the point of S.B. 34. He continued the issue is reasonable expectation of privacy, such as a surreptitious taping of someone in a private situation, not a public situation.

Carol Widmer-Hanna, Executive Director, Private Investigator’s Licensing Board, Office of the Attorney General, asked for an amendment exempting licensed private investigators and their employees from S.B. 34. She said if the bill is passed as written it would have a great impact on such areas as workers’ compensation insurance investigations. She pointed out licensed private investigators are already strictly regulated by the attorney general’s office.

Chairman James said the trouble the Senate Committee on Judiciary had at the initial hearing on S.B. 34 was if private investigators were exempted then private citizens could hire a private investigator to procure a videotape for them. For this reason Chairman James did not think an exemption would be appropriate. He added the bill should be written in a way that will not prevent licensed private investigators from doing what they currently do legally, but will protect people’s right to privacy.

Michael Rizer, Investigator, Gold Coast Agency, Inc., reiterated investigators are strictly regulated in Nevada. He added that privacy statutes are highly regarded in the investigations industry. He furthered 99.9 percent of what his agency does relates to insurance fraud, yet he remains cognizant of individuals’ rights to privacy, such as six-foot fences surrounding front and back yards. Mr. Rizer said if a person is open to public view that person has lost his expectation of privacy and that is where the investigators get their evidence.

Senator Wiener asked about the reasonable expectation of privacy with regard to high-riding vehicles or helicopters where a six-foot fence is concerned. Mr. Rizer opined if it is within public view there should not be an expectation of privacy. However, he said stringent care needs to be taken when addressing the language in S.B. 34.

Chairman James suggested taking care of this issue by amending Nevada Revised Statutes (NRS) 200.650, which prohibits the unauthorized intrusion of privacy by a listening device, to include video devices. He added the critical part of this statute is "intrude upon the privacy" which brings into play the Nevada and federal law defining when a person has a reasonable expectation of privacy. He stated this amendment would not affect what investigators or the media now legally do and would not get into the issue of hidden cameras. It would bring the statute in line with current technology and would extend the protection of privacy to video situations.

Senator Bernice Mathews, Washoe County Senatorial District No. 1, stated Chairman James’ suggestion on how to handle S.B. 34 was her intent in the first place. She furthered her intent had nothing to do with the news media or licensed private investigators. She continued that she believes private citizens have a reasonable expectation of privacy in their daily lives. Senator Mathews asked Mr. Rizer how he felt about video devices becoming a part of NRS 200.650 as suggested by Chairman James.

Mr. Rizer said he did not think amending NRS 200.650 as suggested by Chairman James would be a problem. Chairman James again suggested essentially striking out S.B. 34 as written and amending NRS 200.650 to include video.

Russ Benzler, Chief Investigator, Bureau of Enforcement, Registration Division, Department of Motor Vehicles and Public Safety, said he had initially testified his concern was how this would affect investigations other than criminal, such as those that are regulatory or administrative in nature. He asked if the amendment being discussed would allow taping in any public place.

Chairman James responded yes. The proposed amendment would not change the practices of any licensed private investigator who follows Nevada’s current law regarding legal surveillance.

Donna Sweger, Supervising Attorney, Nevada Attorney for Injured Workers, Department of Business and Industry, stated she likes the bill because it limits the filming to furthering criminal investigation only. She has seen many situations where injured workers are being taped and privacy is being invaded where no criminal investigation is happening. She stated she would even like to see S.B. 34 passed as is and not amended.

Chairman James asked Ms. Sweger if she understood the nature of the proposed amendment. Chairman James said the existing law (NRS 200.650) prohibits intruding "upon the privacy of other persons by surreptitiously listening to, monitoring or recording, or attempting to listen to, monitor or record" their conversations, and the subcommittee is proposing to add video to that statute.

Robert A. Ostrovsky, Lobbyist, Nevada Resort Association (NRA), voiced his support of the concept of this bill and asked for the opportunity to have NRA’s legal counsel look at the bill with regard to videotaping in casinos for the purpose of monitoring employees. Chairman James offered to provide a copy of Senator Care’s research. Mr. Ostrovsky said that would speed up the process for the NRA.

Mary F. Lau, Lobbyist, Retail Association of Nevada, asked for an opportunity to review Senator Care’s research also. She acknowledged she also supports what is trying to be accomplished with this bill.

Senator Care said he would be glad to release the research information to Mr. Ostrovsky and Ms. Lau.

Senator Wiener asked if there was any comment from the press association or the media. Kent F. Lauer, Lobbyist, Nevada Press Association, said he would like to see the amendment and have an opportunity to review NRS 200.650.

Chairman James suggested that the subcommittee recommend the amendment incorporating "video" into NRS 200.650. Chairman James asked for a motion.

Senator Care said he voted for the amendment recommendation because he wants to see the amendment and his vote on the subcommittee does not necessarily reflect how he might vote as a member of the full committee.

There being no further business, Chairman James closed the subcommittee hearing on S.B. 34 and adjourned the meeting at 10:35 a.m.

RESPECTFULLY SUBMITTED:

Janice McClure,

Committee Secretary

APPROVED BY:

Senator Mark A. James, Chairman

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