Gotcha!   

"Prime-Time Live" popularized the use of hidden cameras and local stations rely on them for dramatic, high-impact footage. Their prevalence has provoked debate over how and whether they should be used – and lawsuits.

When attorney Joel Rachmiel sat down to watch television on an August evening in 1993, he was prepared to take his lumps. He knew CBS' "Eye to Eye with Connie Chung" was going to accuse him of wrongdoing in a segment that night on accident insurance fraud.

But Rachmiel says he had no idea he'd not only hear these charges, but see himself on television, in his own office. "I didn't think I was going to be on TV," says Rachmiel, "and when I saw myself I was kind of flabbergasted."

A CBS News correspondent, Roberta Baskin, had covered a series of bus accidents staged by the New Jersey Department of Insurance to catch lawyers and doctors filing fraudulent claims for accident "victims." CBS cameras videotaped one of the incidents in which Baskin was on a bus. Baskin says the only injury she sustained was when a woman stepped on her toe.

The CBS story alleged that a "runner," someone paid to direct accident victims to a particular attorney, sent Baskin to Rachmiel. Baskin and Leslie Hankey, a CBS camerawoman carrying a concealed video camera, visited Rachmiel's office and told him Baskin had been injured. Baskin identified herself as Michelle Wielosynski. Hankey surreptitiously recorded the conversation.

"Eye to Eye" viewers saw Rachmiel say to Baskin, "If you go to Dr. Sherman on a regular basis, you could probably end up in a case like this, you know, $10,000." Baskin said Rachmiel never asked her about her injuries. If Rachmiel was conspiring with a doctor, he would have been violating state rules barring fee-splitting and may have been guilty of insurance fraud. He has not been charged with committing any crime.

Rachmiel has filed a libel suit against CBS News. Among other things, he says CBS News "deceitfully intruded upon a part of professional life..seclude[d] from public gaze, that is, plaintiff's confidential and legally protected professional relationship with his clients."

Baskin declines to comment because of the pending suit. CBS News Vice President Linda Mason says, "CBS News stands by Roberta Baskin's report; we don't feel anything was done improperly. We followed CBS News policy."

ýhat policy requires approval for the use of a hidden camera from a news division vice president and legal counsel. Hidden cameras are used only "in those cases where we would have been denied access," says Mason, "and the element is an important part of the story."

The policy doesn't always hold up, however. Late last year the network was embarrassed by veteran correspondent Mike Wallace's questionable use of a hidden camera. Wallace secretly videotaped an interview with magazine writer Karon Haller, a source for a "60 Minutes" story who was reluctant to make an on-camera appearance. Wallace later said the hidden camera was used only to convince Haller she'd look good on air. She subsequently agreed to be videotaped, and the hidden camera footage was scrapped. Even so, CBS News reprimanded Wallace and his producer for failing to adhere to network policy, and Wallace apologized during a "60 Minutes" broadcast last December.

Problems with hidden camera stories are not unique to CBS. Over the last six years, the pioneering work of ABC News' "PrimeTime Live," advances in camera technology and the public's apparent interest in "gotcha" journalism have fueled a dramatic increase in the use of hidden cameras on both the national and local level. In turn, growing reliance on hidden cameras has led to embarrassing apologies as well as potentially costly lawsuits (see "The Press and the Law," April 1994).

Some producers and reporters who use hidden cameras say they adhere to strict guidelines and cite numerous stories that couldn't have been done any other way. But unfortunately the cameras often are used as a substitute for thorough reporting. Moreover, some journalists say hidden cameras shouldn't be used at all. They say they're unethical, and can result in stories that constitute a serious invasion of privacy.

Privacy law has never been as well-defined as libel, and still hasn't been conclusively established by Supreme Court rulings. However, airing audio recorded during a hidden camera investigation is prohibited in some states by laws requiring the consent of both parties to record a conversation. And in California, a judge is threatening to bar ABC News from using hidden cameras in private workplaces in the state. Had that been the law in New Jersey, CBS News wouldn't have been able to record in Joel Rachmiel's office. Some journalists fear cases like the one in California as well as the threat of lawsuits may force reporters to stop using hidden cameras altogether.

The news media have utilized hidden cameras since 1928, when the New York Daily News sent a photographer to Sing Sing Prison with a small camera strapped to his ankle to secretly photograph an electrocution.

Fifty years later, the famous Mirage Bar story pretty much brought an end to newspapers using hidden cameras. The Chicago Sun-Times, in collaboration with a watchdog group, the Better Government Association, set up a saloon monitored by hidden cameras to document licensing inspectors soliciting bribes. The Sun-Times was roundly criticized for the sting and Chicago papers no longer use hidden cameras. In fact, most newspapers no longer consider them appropriate. "Papers can't really show a story through pictures," explains Jeff Kumer, investigations editor at the St. Paul Pioneer Press. "We have to show the story with words."

Television reporters started using concealed cameras in the late 1950s. One noted early example was in 1961, when CBS News producer Jay McMullen staked out a Boston bookie joint, shooting from an apartment building across the street to show the comings and goings of uniformed police. He also slipped a camera, hidden in a lunch box, into the establishment.

Over the years other network and local reporters routinely shot pictures from vans with cameras hidden behind curtained windows. But the impetus for the recent proliferation of hidden camera stories came in 1989, when ABC's "PrimeTime Live," using new miniature cameras, developed an innovative reporting style. Investigative producer Robbie Gordon used hidden cameras to uncover patient abuse in a health care facility in Houston, in Veterans Administration hospitals and in a day care center (see "Out of Sight," December 1994). These were dramatic stories that received favorable attention from the press and attracted large audiences. Without hidden cameras, says Gordon, the stories would have been impossible to do.

Gordon had used hidden cameras years before, but they were bulky and hard to work with. In the early 1980s she snuck a large camera into a hospital emergency room in a suitcase. "It made so much noise when it started up," Gordon remembers, "that we all had to cough to cover up the sound." By 1989, though, Toshiba and Elmo had started producing cameras the size of a lipstick. When carried in a wig, a hat or a stuffed toy, they couldn't be seen or heard. And unlike the previous generation of cameras, microminiatures can deliver an extremely clear picture. They're also relatively inexpensive: A camera and lens cost less than $4,000.

By 1991, the success of "PrimeTime Live," the new cameras' convenience and relatively low cost, and the promise of higher ratings convinced other network shows and local stations to embrace hidden camera technology. That's when major ethical questions started cropping up again.

In 1992, the Society of Professional Journalists (SPJ) and the Poynter Institute for Media Studies took official notice of the growing use of hidden cameras by adopting guidelines drawn up at the institute. A year later SPJ published a handbook, "Doing Ethics in Journalism," which recommended that hidden cameras be used only for stories of profound importance when there's no other way to get the information, and when the information outweighs the potential harm caused by the deception. SPJ distributed the handbook to thousands of newsrooms.

That same year, Ira Rosen, senior producer for "PrimeTime Live" investigations, attended a Poynter Institute workshop on hidden cameras. He was shocked by what he heard. According to Rosen, some local reporters said their news directors were demanding hidden camera stories. "They'd invested in 'spy cam' technology," says Rosen, "and were compelling reporters to use it without regard to the editorial content."

ýosen reviews undercover stories by reporters applying for jobs at "PrimeTime Live" and says he sees pieces that use hidden cameras unnecessarily. He says he's concerned "their bad work will impact me" by undermining truly legitimate hidden camera investigations.

Some of the "bad work" Rosen worries about includes poorly conceived stories, stories where the final result doesn't justify the inevitable invasion of privacy that goes with the technology, and ones in which stations rely on a quick hit with a hidden camera in lieu of thorough reporting.

GIn March 1993, KMOV in St. Louis installed hidden cameras and a male prostitute in a downtown hotel room to try to trap a priest into talking about alleged sexual activities of his fellow clergymen. The sting backfired and a local prosecutor launched an investigation to determine if KMOV was guilty of promoting prostitution. She ultimately determined no laws were broken, but found that the station had shown "bad judgment and poor ethics."

GWRGB in Schenectady, New York, gave a hidden camera to a 13-year-old Albany girl in May 1993 to look for examples of discipline problems at her school to dramatize a statewide story. School authorities caught the girl and confiscated the camera. The station apologized to the school superintendent.

GLast November, a police officer told a reporter at WLWT in Cincinnati that a man paid a local jewelry store $1,750 for an engagement ring worth only $400. The reporter did not obtain the sales receipt, but used a hidden camera to tape an unsuspecting store clerk who confirmed the value of the ring at $400. After the story aired, the store produced records showing that the customer had paid $400 for the ring. The station aired an apology.

At the time, none of the stations had guidelines, and all three investigations failed to meet SPJ's recommended procedures. All three stations subsequently adopted stringent standards.

Last spring, Minneapolis station WCCO aired a piece that at least one critic says looked like a reporter trying to play police officer. According to University of St. Thomas journalism professor Dave Nimmer, a former Twin Cities print and broadcast reporter, WCCO reporter Tom Gasparoli became "a shill for a detective" trying to solve a crime. The story, on the murder of 3M executive Dennis Stokes, was introduced this way: "WCCO has learned his widow Terri Stokes became a prime suspect within 48 hours of the murder and is still the primary target of the investigation." The report included footage of police interrogating Stokes, filmed through a two-way mirror, and hidden camera footage of a confrontation between Stokes and her mother-in-law, whom Gasparoli wired with a hidden microphone.

Gasparoli says his decision to use a hidden camera is based on his subject's "zone of privacy." He suggests that people have a general right to privacy, but it can be diminished by their actions. If a person is an elected official, for example, that person's zone of privacy is smaller than that of a private citizen. In this case, says Gasparoli, Terri Stokes' "zone of privacy was reduced to the point we felt comfortable putting a wire on the mother and then subsequently airing what was said because she had been named as a suspect in a search warrant." There also were other aspects of the story that led Gasparoli to believe Stokes' zone of privacy was diminished. Stokes has never been charged for the crime.

J. Laurent Scharff, general counsel to the Radio-Television News Directors Association, is uncomfortable with the notion of a zone of privacy. It can be "dangerous for a layman to come up with a test," says Scharff, "however logical it may appear, if it's not sophisticated and accurate enough to reflect all the considerations the law requires."

Scharff says stations should have explicit guidelines and recommends that reporters consult not only with station management but with lawyers as well. In this case, WCCO had no written guidelines, and Gasparoli decided to wire Stokes' mother-in-law the night before her meeting with Stokes without consulting anyone.

Poynter Institute ethics program director Bob Steele, who wrote the SPJ hidden camera guidelines, says the fact that Stokes' widow was taped surreptitiously could foster the perception that she is guilty. Taping someone with a hidden camera implies something is wrong, he says. Therefore, "the very act of obtaining information this way is an ethical question."

ABC News Senior Vice President Dick Wald, who rules on hidden camera requests at the network, acknowledges that hidden camera footage, by its very nature, tends to make anything seem suspicious. "Technology is without ethics," he says. "Our process tries to assure we operate ethically in its use."

Some local stations also are trying to ensure they use hidden cameras responsibly. They subscribe to the SPJ guidelines or they send reporters to Poynter Institute seminars on ethical decision making. There also are reporters who have adopted their own personal guidelines that are more stringent than SPJ's.

Pam Zekman is one reporter who has fashioned her own standards. She's been an investigative reporter at WBBM in Chicago since 1980. Before that, she worked for the Chicago Tribune and the Sun-Times, and was the reporter who did the preliminary work for the Sun-Times Mirage Bar story.

Zekman says it's more difficult to do investigative reporting for television than newspapers because of television's demand for pictures. But more than a decade in TV has shown her that reporters don't have to resort to a hidden camera. Zekman did an award-winning story on the Chicago police without going undercover. Instead, she did a painstaking records search that revealed the police department had been claiming officers' initial reports were unfounded to make it appear there was less crime.

But Zekman won't hesitate to use a hidden camera when she thinks it's necessary. She says Chicago is a market where "people have demanded undercover reporting as a standard of journalism." In a story that aired last November, Zekman used a hidden camera to document home repair ripoffs. When Zekman confronted the repair companies, they accused her of lying. She then simply ran the hidden camera footage for them. "The good thing about the hidden camera," she says, "is it allows no wiggle room."

Zekman stresses that she is very careful how she uses concealed cameras. She consults with lawyers beforehand and won't use them in private homes. She's never been sued.

Jacquee Petchel at WCCO in Minneapolis is another former newspaper investigative reporter who has managed to avoid lawsuits.

"Hidden cameras should be used primarily in public places where there's no expectation of violations of privacy," she says. In May 1994, Petchel's hidden camera captured city police sleeping, moonlighting at other jobs, and hanging out in strip joints while on duty. Following the reports, two officers were fired, two voluntarily retired and two others were reassigned. The series won a duPont Award in January.

WCCO has no written guidelines on hidden cameras, but Bob Steele of the Poynter Institute has visited the station to counsel news staffers. Petchel herself has a long track record in investigative reporting and was a member of a Pulitzer Prize-winning team at the Miami Herald. She is currently on the board of directors of Investigative Reporters and Editors.

Another station in the Twin Cities market, KSTP, has developed written guidelines based on SPJ standards. The use of hidden cameras requires prior approval by the news director or managing editor, and lawyers.

One of the most notable KSTP investigations in recent years resulted in a series of reports aired in November 1991 on racist department store security guards. The series, by reporter Joel Grover, revealed that guards were targeting black shoppers for no reason other than their race. Grover's hidden camera caught one guard on her hands and knees, peeping into a dressing room as a black shopper tried on clothing. He videotaped another guard saying he follows blacks around the store because "I just don't like them." The series, which won Peabody, duPont and Emmy awards, forced the stores to dismiss some of the guards and to enforce previously ignored regulations regarding equal treatment.

Prudent approaches to hidden cameras don't inoculate stations against lawsuits, however. KSTP, for example, is facing a suit stemming from a series reported by Grover that aired in February 1993. The series, called "The Big Fix," featured hidden camera footage documenting allegedly fraudulent practices of Expertech, a home appliance repair company. KSTP accused the company of charging customers for unnecessary repairs and it went out of business about six weeks after the story ran. The company then filed suit, charging the station "falsely portrayed the business practices of Expertech as dishonest."

KSTP denies any wrongdoing and the case is expected to go to trial later this year. Meanwhile, two other lawsuits against KSTP resulting from other Grover stories, dismissed in lower court, are currently on appeal.

Becky Oliver, a veteran investigative reporter at KDFW in Dallas, has been sued three times over hidden camera stories. Although all three cases were dismissed, she's not as upbeat about the microminiature cameras as she once was: "I'm learning computer-assisted journalism as fast as I can." She says mounting legal challenges are beginning to change TV reporters' attitudes. At the annual IRE convention two years ago she remembers that reporters were enthusiastic about using tiny cameras. At last summer's convention, reporters were talking about lawsuits.

Rosemary Armao, executive director of Investigative Reporters and Editors, says she has received a number of calls over the past year from stations asking about laws governing the use of hidden cameras and microphones. Armao compares the current status of hidden camera reporting to investigative reporting following the Washington Post's Watergate coverage. That story prompted other papers to launch investigative projects, which led to lawsuits. "The same pattern," says Armao, "is taking place with hidden cameras."

In Minnesota, attorney Pat Tierney is representing the plaintiffs in the appeals against KSTP over two Grover stories. Tierney wants to establish the legal concept that hidden cameras constitute an invasion of privacy in his state. In one of his appeals he says, "The Constitution even precludes the government from entering and searching a private residence without compelling cause. To permit the media to engage in this type of outrageous conduct violates privacy rights that are rooted in the Constitution."

Privacy is a relatively new legal concept. Before the late 19th century, the United States, a largely rural nation, had little need for privacy laws. In an apparent response to scurrilous newspaper accounts of the rich and famous, Boston lawyers Samuel Warren and Louis Brandeis wrote an article in 1890 for the Harvard Law Review arguing for laws protecting a person's right to privacy. But such laws have never been formally codified at the federal level and state statutes are inconsistent. As a result, lawyers are jumping in to test the waters.

Perhaps the most important current suit is against ABC's "PrimeTime Live." California Judge Bruce Geernaert has warned he plans to issue an injunction specifically barring ABC News employees from using hidden cameras in private workplaces in his state. In a hearing in January, lawyers argued whether California law already bans hidden cameras. ABC lawyers maintained that "under some circumstances" they are lawful. Geernaert said that is "absolutely wrong."

The injunction would be at the request of attorney Neville Johnson, whose clients already have won a $1 million judgment against ABC for a February 1993 story called "Hello Telepsychic."

For the story, "PrimeTime Live" hired a young woman to go undercover to work for telephone psychics. Using a hidden camera, ABC videotaped the psychics saying things privately that suggested they didn't believe in what they were doing and that they were deceiving callers.

Johnson says one of his clients has suffered constant humiliation since the story aired, and another "relapsed into severe alcoholism..and died." Denouncing hidden camera reporting, he says, "Imagine being scourged and whipped in front of 24 million people. You're tried, convicted, sentenced and buried at sea, with no right of appeal, and you don't know that it is happening to you and have no way to fight back."

Geernaert says the injunction may be necessary because simply awarding damages to the plaintiffs "won't get the attention of ABC." ABC lawyers would appeal the injunction on First Amendment grounds, but they say the jury verdict and the million dollar damage award will stand "as an absolute barrier" to the network's use of hidden cameras in private workplaces in the state.

Some observers say an injunction would represent unconstitutional prior restraint. Others agree it's a bad precedent but nevertheless are concerned about the use of hidden cameras. Poynter's Steele warns, "Even though the access is legal, it may not be ethically justified." Everette E. Dennis, executive director of the Freedom Forum Media Studies Center, believes the injunction would be an intrusion on the First Amendment, but criticizes the use of hidden cameras as a "lazy kind of journalism, driven by ratings and people who don't have a clue about ethics. It's a bulldozer over a lot of things people hold dear."

Both Twin Cities plaintiffs' attorney Tierney and Laura Lee Stapleton, a defense attorney, predict suits involving hidden cameras are going to be a growth industry. "In defamation law," says Tierney, "the future is in attacking television stations which have created news rather than reported it." Says Stapleton, writing in the newsletter Media & the Law, "The First Amendment doesn't seem to immunize the news media from liability when it uses hidden cameras to do investigative reporting."

Some journalists say the legal challenges are only one reason to bar the use of hidden cameras. Former CBS News correspondent Marvin Kalb, now director of the Shorenstein Center on Press, Politics and Public Policy at Harvard University, is opposed to the use of hidden cameras under any circumstances. He believes hidden camera gaffes "may be one reason for the low esteem in which the profession is held."

"Journalists should walk in the front door, not sneak in the back door, even if in doing so they catch a crook with his hand in the cookie jar," says Kalb. "I'd rather introduce myself honestly so people know who they're dealing with."

Steele thinks hidden cameras can serve a valuable purpose, but says that "journalists have misused and overused [them]. They're an important tool to have in the journalistic bag, but we should use them judiciously, conservatively and with the recognition that the stakes are very high, because the consequences for those individuals who are the subject of hidden cameras can be dire and the impact on journalistic credibility is profound." l