Your thoughts on Video shopping please.

I had a very serious Mystery shop on Saturday and I wanted to make sure I got it right so I asked hubby to use his audio recorder. He said that it was entrapment and I should not be taping anyone without their knowledge. in this case, the audio recording was simply for me to remember what took place.

This morning, I was setting up for a video recording shop ( where you hide the camera on your person) and he told me that he did want me doing anymore shops like that because it is AGAIN entrapment. I figure, if the company is requesting these shops then the employer must have some knowledge that this could happen.

I would like to hear the thoughts of those who have actually mystery shopped instead of him who has only accompanied me on some shops.

Create an Account or Log In

Membership is free. Simply choose your username, type in your email address, and choose a password. You immediately get full access to the forum.

Already a member? Log In.

It's not entrapment, but recording with the knowledge of all parties is illegal in some states. It's generally referred to as two-party consent and it just depends on your location.

You can see a state list here:

[www.aapsonline.org]

Since I'm in CA, I won't do any shops that require recording, just to be safe. Some employers have the staff sign waivers that say they understand they may be recorded, but it's kind of a grey area legally.
I do a ton of video shops. There are 14 states where the written consent of all parties to the audio recording is requireed. The MSC is responsible for insuring that the employer has had all employees sign a consent form. Remember, it is the audio that is the legal issue. (Video without audio is okay, per The Supremes.) Be sure to ask the MSC if they have required the employer to get consent forms. A couple of MSCs don't seem to care about compliance, btw. But we, as shoppers, can be liable if the MSC has screwed up on this. I concur that the law in California appears to be so "tight" that I would not do any audio recording there at all until there has been some case law established.

If you are asked, as I was recently, to do a shop that requires audio for a "competitor" in one of the "two party consent" states, run like the wind. There is simply *no way* the client has gotten their competitor's employees to sign consent forms! (In my case the MSC assignment folks had screwed up. They apologized and sent me to do a written competitor shop instead, but paid me at the video rate.) If I seem a bit "hyper" on the subject of consent, it may be because I live in a "two party consent" state and know of a specific case in which someone (NOT a mystery shopper) went to jail for audio taping conversations without the other party's consent. (Yes, the other party was ML.)

Based in MD, near DC
Shopping from the Carolinas to New York
Have video cam; will travel

Poor customer service? Don't get mad; get video.
The previous posters were both absolutely correct. No, it is not entrapment if the person you are video recording has been informed that they could be filmed by a secret shopper.

As far as audio recording goes, so long as the audio never gets released you're fine. Just don't let anyone catch you recording. I record all of my shops just to get timings and accurate quotes. However, no one gets the audio recordings other than me.
The key to video recording...and some attached audio depending on the state...is the phrase "reasonable expectation of privacy." The Supreme Court had ruled on this very issue of privacy. If you are recorded in a lockerroom, a fitting room or restroom, that is a violation of your privacy because you expect to have some privacy there. But as you will see in numerous Dateline hidden camera specials, recording bad food practices in a restaurant or catching Workman's Comp frauds doing heavy lifting ourt of a moving van, there is no reasonable expectation of privacy in those locales while in the public sphere.
I audio record to make certain I am reporting with accuracy. When I state in a report that I ordered an ABC and was served a DEF and charged for a DEF, I want to know for sure that I didn't accidentally order a DEF because I certainly don't want to charge the client with an error when the error was mine.

I am aware that as a condition of employment, employees may have to sign a consent to be audio or video recorded. I am still uncomfortable with taking advantage of that for my profit by recording audio or video for their employer. I have done a couple of audio shops and luckily they have done well, with genuinely friendly people who did nice presentations and a shop without the audio would have shown them hitting the marks with ease as well as building a strong enough rapport that for the first 5 miles driving away from the site I was thinking seriously about using their services (which I don't really need). I am not inclined to do more of these shops because the audio for my own use has shown enough poor service that I don't care to be in the middle of getting someone fired. On bad shops I DO save my audio in case there are questions that arise about MY performance.

My sense is that this boils down to a moral/ethical question in addition to the legal ones, and frankly I agree with prettygul1's husband that potentially they are entrapment, so choose not to play. My role as a shopper, I feel, is to tell the client how I AS A CUSTOMER perceived the services and information I received. Perhaps audio and video shops require less report from me, but they represent little or nothing about how I AS A CUSTOMER perceived the services, information or my sense of whether I would ever go back. I have little interest in being a moving tripod. I am an evaluator, not a piece of equipment.
[www.rcfp.org] is a guide for journalists about the taping of conversations. Steve's list dealt specifically with phone conversation, this one deals more broadly. For example, if you live in MA, this is what it has to say:


BEGIN QUOTE
It is a crime to record any conversation, whether oral or wire, without the consent of all parties in Massachusetts. The penalty for violating the law is a fine of up to $10,000 and a jail sentence of up to five years. Mass. Ann. Laws ch. 272 , § 99.

Disclosure of the contents of an illegally recorded conversation, when accompanied by the knowledge that it was obtained illegally, is a misdemeanor that can be punished with a fine of up to $5,000 and imprisonment for up to two years. Civil damages are expressly authorized for the greater of actual damages, $100 for each day of violation or $1,000. Punitive damages and attorney fees also are recoverable.

For example, in Com. v. Hanedanian, 742 N.E.2d 1113 (Mass. App. Ct. 2001), the appellate court held that a defendant’s conduct of intentionally making a secret tape recording of oral communications between himself and his attorneys, without consent, violated the statute, even though the defendant was a party to the conversation.

However, the First Circuit, applying the holding in Bartnicki v. Vopper, 532 U.S. 514 (2001), held in 2007 that a woman who accepted from a source a recorded tape, that she had reason to know was recorded illegally by the source, could not be punished for publishing the tape on her website. The court held that the woman had a First Amendment right to publish the tape she received. Jean v. Massachusetts State Police, 492 F.3d 24 (1st Cir. 2007).

An appellate court has also held that the recorded conversation or communication does not need to be intelligible in order for the interception to violate the wiretapping statute. Com. v. Wright, 814 N.E.2d 741 (Mass. App. Ct. 2004).

END QUOTE


If I lived there, you can bet I would never record a shop. EVER. I might, however, make audio notes to myself, but I would not record the shop or any portion of it.


I live in HI. The law for HI says:

BEGIN QUOTE
Hawaii

Any wire, oral or electronic communication (including cellular phone calls) can lawfully be recorded by a person who is a party to the communication, or when one of the parties has consented to the recording, so long as no criminal or tortious purpose exists. Haw. Rev. Stat. § 803-42. Divulging any private message or photographic image by telephone, telegraph, letter, electronic transmission, without the consent of either the sender or the receiver, is a misdemeanor if the accused knows that the message was unlawfully intercepted. Unlawful interceptions or disclosures of private communications are punishable as felonies. Haw. Rev. Stat. § 803-42.

The one-party consent rule does not apply, however, to the installation of a recording device in a “private place” that will amplify or broadcast conversations outside that private place. All parties who have a reasonable expectation of privacy in that place must consent to the installation of a recording device. Haw. Rev. Stat. § 711-1111.

Civil penalties for unlawful interception or disclosure include the greater of actual damages or any profits made by the violator, $100 for each day of violation, or $10,000, along with punitive damages, attorney fees and litigation costs. Haw. Rev. Stat. § 803-48. A hotel room has been found by the Hawaii Supreme Court to be a private place where a recording device cannot legally be installed without the consent of the room’s occupants. Hawaii v. Lo, 675 P.2d 754 (Haw. 1983).

It is a felony to install or use a surveillance device in a private place to view a person in a “stage of undress or sexual activity” without the person’s consent. If the person is not in such a stage, it is a misdemeanor. Haw. Rev. Stat. § 711-1111. It is also a misdemeanor to possess materials obtained through illegal surveillance. Haw. Rev. Stat. § 711-1110.9.

END QUOTE

I tape every shop I do, and I keep every recording.

As to the entrapment issue, I tend to agree that any type of recorded shop that requires you to tape a TARGET is entrapment. I have an issue with the video ones most of all, where you are directly recording the OTHER, not you. As an ex-HR director, I am well aware that employees are given paperwork to sign on their first day of work that signs away all kinds of rights. If you want the job, you sign. In some states, like CA, anything signed under duress, which that is, will not hold up in court. In some states, it is airtight. Given that this kind of "consent" feels utterly wrong to me, I tend to avoid audio shops of most kinds, and will only do them when they allow me to get someone random and do not give me a set script I must use, so I am really recording my experience with any given employee. I will NEVER perform a video shop, even if the MSC paid me $1 mill.

To each their own. But the laws are real, and the penalties are real, and you need to know if what you are doing is legal where you live or do work, even if you do it solely "to keep accurate notes."

**********************************************************************
“Lying in bed would be an altogether perfect and supreme experience if only one had a colored pencil long enough to draw on the ceiling."
~Gilbert K. Chesterton


Edited 2 time(s). Last edit at 05/25/2010 09:32AM by dee shops.
Very interesting, hadn't thought about Video shopping in this most serious manner. Will now re-think it!!!

Live consciously....
Irene, I bet most MSC's do not consider it, either.

**********************************************************************
“Lying in bed would be an altogether perfect and supreme experience if only one had a colored pencil long enough to draw on the ceiling."
~Gilbert K. Chesterton
My fmily hs severl consititutionl lwyers in its rnks. Worth noting when you consider my stnce on the issue. Prdon the txt like lnguge, I m writing from one computer with disbled keybord right now.

**********************************************************************
“Lying in bed would be an altogether perfect and supreme experience if only one had a colored pencil long enough to draw on the ceiling."
~Gilbert K. Chesterton
It is no more entrapment to video tape what an emplyee does when I order a cheeseburger than it is to write a detailed report on the same thing, with the same scenario. When we do hotel shops, many require that we ask someone to let us into the room when we say we have lost the key. That is a specific request to see if they will violate terms of their employment. Do you hand cash to servers or bartenders and then watch and report on how they dispose of it? If you worry about entrapmaent, then you may want to stop shopping. Do you or your teenagers do tobacco and alcohol compliance shops?

Recording may actually protect an employee, because what they actually did is on the record, and not subject to my memory or, worse, to the whims of a less than honest person who is trying to "game" the shopping industry.

Based in MD, near DC
Shopping from the Carolinas to New York
Have video cam; will travel

Poor customer service? Don't get mad; get video.
Dee...funny, I understood your writing without a problem.

Walesmaven....Steve says it is a law in CA, and I trust him without question, so long new career!

Live consciously....
...and to clarify; The recording is not entrapment. It's just most likely just illegal in CA.

Those shops where you are asked to slip the bartender a $20 after last call and see if they serve you are entrapment.

Each shopper has to educate themselves and make their own decision about what they are comfortable with.

Anytime I'm asked to perform an integrity shop for a new client, I ask the MSP about the legality of the shop and their agreement with the client. I have a right to know that as an IC. For me, it's not just the legality component, either. I don't want to be dragged into a court hearing if the employee is let go because of something I reported. I've seen that happen before.

I'm not saying I will never perform a video shop or that they are illegal per se. I just think it's a thin line here in CA and I don't want to be the person who tests that law.

I have a very specific skill and value to upscale resort clients, and am very happy with the assignments I currently perform. Video shopping will never come into play for the type of shop I did over weekend unless I can hide the camera somewhere on my body during a massage, and when I have a place on my body that can do that, I will have bigger problems to worry about!
I agree, I would have a problem with setting someone up though.

walesmaven Wrote:
-------------------------------------------------------
> It is no more entrapment to video tape what an
> emplyee does when I order a cheeseburger than it
> is to write a detailed report on the same thing,
> with the same scenario. When we do hotel shops,
> many require that we ask someone to let us into
> the room when we say we have lost the key. That
> is a specific request to see if they will violate
> terms of their employment. Do you hand cash to
> servers or bartenders and then watch and report on
> how they dispose of it? If you worry about
> entrapmaent, then you may want to stop shopping.
> Do you or your teenagers do tobacco and alcohol
> compliance shops?
>
> Recording may actually protect an employee,
> because what they actually did is on the record,
> and not subject to my memory or, worse, to the
> whims of a less than honest person who is trying
> to "game" the shopping industry.
Sorry, only registered users may post in this forum.

Click here to login