DECEMBER FOCUS
Hotel Law: Vast and Varied Issues and Concerns

On Guard - The Shifting Landscape of Guest Privacy

By David M. Samuels, Esq. Senior Partner and Chair of the Hospitality Industry Group, Michelman & Robinson, LLP | December 18, 2016

Protecting Guest Information in the Wake of the Patel Decision

In June 2015, the U.S. Supreme Court struck down a law enacted by the City of Los Angeles that required hotel owners to comply with warrantless inspections of their guest registries upon demand by law enforcement officers. The High Court, in a 5 to 4 decision, determined that the ordinance was unconstitutional because it did not allow hotels the opportunity to challenge (via judicial review) an inspection demand. As noted by the Court, "Absent an opportunity for precompliance review, the ordinance creates an intolerable risk that searches authorized by it will exceed statutory limits, or be used as a pretext to harass hotel operators and their guest. Even if a hotel has been searched 10 times a day, every day, for three months, without any violation being found, the operator can only refuse to comply with an officer's demand to turn over the registry at his or her own peril."

This ruling represents a major shift in the landscape of hotel privacy rights because it means that not only do hotels have a privacy right in their business records, but, as "owners" of the information (i.e., names in the registry), hoteliers have an affirmative duty to protect that information.

In light of the Patel decision, managers and staff need to be trained as to how to best deal with official demands for guest information, including: requests for records, access to guest rooms, review of security camera footage, and requests to interview staff. Hotel personnel must not only understand a guest's expectation of and right to privacy, but also be trained to act in a way that shows respect to law enforcement. Hotels must walk a fine line in maintaining positive relationships with local law enforcement (who, after all, are tasked with protecting your property, staff and guests) while at the same time safeguarding guests' constitutional right to privacy.

Employees should be trained to politely inquire whether an officer is responding to an emergency situation and, if that is not the case, request a warrant or subpoena. Employees also need to be trained how to respond if the request is met with an initial lack of acceptance from the law enforcement officer. Such a circumstance can, and has, quickly escalated to an officer improperly threatening to shut the business down based on a refusal to immediately comply. Employees must be trained to calmly explain to the officer that, although the hotel is eager to cooperate with law enforcement, the hotel has a duty to safeguard guest privacy and protect the hotel's proprietary information. In some instances, it may be helpful to have the employee mention the Patel decision and explain to the officer that the hotel's hands are tied by recent Supreme Court precedent. If this does not suffice, the employee should be trained to have a manager contact the hotel's legal counsel. While the Patel case gave hoteliers solid ground upon which to refuse to turn over private guest information without a warrant, it may be some time before law enforcement becomes accustomed to having their requests rebuffed.

Satisfying Guest Privacy Expectations After the Andrews Verdict

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