BY KATIE MILLER
In September 2013, attorney Scott Greenwood of the American Civil Liberties Union (ACLU) said of police use of body-worn cameras, “You don’t want to give officers a list and say, ‘Only record the following 10 types of situations.’ You want officers to record all the situations, so when a situation does go south, there’s an unimpeachable record of it—good, bad, ugly, all of it. This is an optimal policy from a civil liberties perspective.” But in 2014, the ACLU was in retreat from this recommendation, citing citizen privacy concerns: “Our proposals were necessarily preliminary. With the technology moving as fast it was, we felt compelled to weigh in when we did.”
The ACLU’s flip-flop is a reminder that technology is a tool, not a policy solution. And in deciding whether to adopt a body-worn camera program, policy makers must consider implications beyond police efficacy and accountability. As police departments across the country increasingly use body-worn camera technology, questions of privacy (what content is recorded), accessibility (who is entitled to viewing it), and transparency (under what circumstances it must be released) must be addressed in tandem with any expressed goal of greater police accountability.
On 9 August 2014, Officer Darren Wilson shot and killed unarmed teenager Michael Brown, a robbery suspect, in Ferguson, Missouri, during an investigative stop. The incident prompted massive riots and a national debate on police violence and accountability, especially in communities of color.
One of the most tangible reforms to come from this debate was the piloting and implementation of body-worn camera (BWC) programs. Body-worn cameras are recording devices affixed to law enforcement officers during their tours of duty. The officer activates the camera to audio visually record work-related activity, such as investigative stops and calls for service. At the end of the tour, the camera is returned to a docking station where recordings are uploaded to a central online database and can be viewed by investigators and prosecutors, among others.
In 2015, the federal government provided $23.2 million in grants to 73 municipal and tribal police departments to purchase, deploy, and study the effects of body-worn cameras. By 2016, a report from the US Department of Justice indicated that nearly half of all municipal law enforcement agencies had a body-worn camera program. Another survey revealed that 95 percent of large cities either already had them or planned to get them. Seemingly overnight, the technology had proliferated.
However, the data on the effects of body-worn cameras do not present a clear picture. According to some studies, BWCs reduced civilian complaints against officers as well as use-of-force incidents, but causality is not established. This could be a result of citizens behaving differently in the presence of a BWC, officers engaging in more professional behavior, a combination of both, or something else altogether. However, a study lauded for its scope and breadth, which was conducted in Washington, DC, and published in 2017, cast doubt on these findings.
Though body-worn camera programs may have been initiated by calls for police accountability, law enforcement agencies have found them to be an asset for administrative and criminal investigations. Criminal investigators can now dissect a complicated crime scene and make observations a first responder may miss in the heat of the moment, such as identifying witnesses. Videos provide police academy instructors an opportunity to teach recruits using real-life examples. And courtrooms have been updated with monitors in order to show critical footage from a crime scene or of witness testimony to jurors.
Body-worn cameras are likely here to stay, if for no other reason than the fact that police departments and citizens like them. In a 2015 survey, 85 percent of departments reported that they would recommend a BWC program to another department. A separate study conducted in 2015 revealed a 90% approval rate among a municipality’s denizens who interacted with officers wearing BWCs. With broad consensus among officers and citizens, the issue of whether to deploy a program is perhaps secondary to the question of how best to do it.
The Issues of Privacy, Accessibility, and Transparency
The questions of privacy, accessibility, and transparency ought to be considered alongside the perceived law enforcement efficacy and accountability merits of a BWC program. Using a single scenario, it is possible to illustrate several decision points a policy maker should consider when reviewing or drafting guidelines for BWC implementation.
Unfortunately, for most police officers, calls for domestic violence are routine. Consider a person, Casey, who has just been physically assaulted by an intimate partner in their home. The partner flees the residence, and a concerned neighbor, upon hearing the commotion, calls the police. The officer enters to find Casey partially clothed and with swelling around the face. Casey states, “Sam hit me again!”
Privacy: The Right Not to Be Recorded
Let’s consider the merits and drawbacks of the BWC in this scenario. The footage captures evidence of a physical altercation and critical witness testimony, which can be introduced to a jury at trial. It also records the conversation between police and the victim, ensuring that Casey is treated with respect and the officer is protected against false allegations. Moreover, the officer may not remember later that Casey said, “Sam hit me again,” a critical detail that would indicate a history of domestic abuse. The BWC becomes evidence, a source of protection, and a resource for accurate report writing. In other words, it furthers the goal of police efficacy and accountability.
However, many police departments stipulate that a body-camera must be activated from the moment of receiving a call for service, which means that the officer would have recorded the words of the victim, the victim’s home, and even the victim’s state of partial undress. These intimate details of Casey’s traumatic experience are now a matter of public record. One may argue the existence of such a video is an intrusion into Casey’s privacy.
If Casey requests the BWC be turned off, it is imperative that departmental policy specify the appropriate action by the officer. Especially because the victim is in a state of undress, the officer might feel that the BWC is a protection against false accusations and prefer it remain activated, particularly if a department presumes wrongdoing by the officer in the absence of video. Additionally, Casey may refuse to testify against the abuser if this case eventually goes to trial. Body-worn camera footage of victim testimony on scene may provide enough evidence to charge and convict Sam without Casey’s testimony. These concerns again pit accountability and efficacy against Casey’s request for privacy.
Accessibility: The Public-Record Request
The next facet to consider is video accessibility—how long a video is stored and under what conditions it can be viewed. Returning to our example, assume Casey and Casey’s partner, Sam, had an argument and no assault occurred. Police interviewed both parties, which is captured via body-worn camera. That video is later uploaded to a web database. Whether Casey, Sam, or any member of the public can view that footage varies wildly across states and departments, prompting an organization of journalists to coin BWCs as the “Wild West” of open-records requests.
Police departments that piloted BWC programs are beginning to receive much-needed guidance from state policy makers on this issue. At present, 23 states and the District of Columbia have passed some form of law stipulating how body-worn camera footage is to be treated under state open-record laws.
On one end of the accessibility spectrum, Washington state’s public-record laws prior to 2018 were so broad that nearly all police body-camera footage could be released to a requester, even if they were not involved with the incident. Not only would Casey and Sam have access to the video, but their neighbor who called 911 could get a copy too. In Seattle, it is possible the video would have ended up on YouTube. Until 2016, the Seattle Police Department posted hundreds of redacted BWC footage to its publicly accessible YouTube account, at least in part to shoulder the burden of fulfilling records requests.
In other states, such as North Carolina, legislators prioritized privacy. The state legislature passed a law that specified that body-worn camera footage cannot be considered part of the public record and can only be obtained by court order. Viewing footage (but not copying it) could only occur if the requester is the subject of the video, and even then only with a police chief’s approval and redactions. In this scenario, it is unlikely that Casey or Sam could view unredacted video, let alone receive a copy of it.
Concerns about who is allowed to access video can be sidestepped, in part, with video-deletion policies. When footage is not being used in connection with a criminal investigation, departments will not retain it indefinitely, deleting it anywhere between 45 and 180 days past its recording.
Importantly, accessibility policy is resource intensive. In a survey of departments with BWC programs, researchers found that technology sometimes “dominates” policy concerns. For example, discussions on the cost of hiring personnel to review, redact, and address public record requests may overshadow a broader accessibility policy debate.
Transparency: Which Videos Are in the Public Interest
Transparency is distinct from accessibility because it refers not to the ability for a single person to view a video but rather the expectation that a department will release videos deemed to be of public interest. Since the national movement to deploy body-worn cameras was initiated by advocates of police reform, fatal police–citizen incidents are widely considered germane to public interest. However, there is a spectrum of transparency across the country. In 2018, Chicago became the first municipality to mandate the public release of all BWC footage capturing police use-of-force incidents. This stands in stark contrast with North Carolina’s court-order policy, discussed above.
Revisiting our example, suppose this time that Sam had stabbed Casey and both were alive when officers arrived on the scene. Sam, still armed with the knife, disobeyed the officer’s repeated commands to drop the weapon and advanced toward the officer with the knife in hand. The officer fatally shot Sam. An internal investigation begins, which may be referred to the district attorney’s office for prosecution.
In this instance, assume the facts are straightforward and the shooting is justified (meaning that Sam presented a legitimate threat to the life of the officer). In Chicago, the video becomes public in 60 days, even if it goes against the wishes of Casey or Sam’s family. Transparency comes at the expense of privacy because policy makers of Chicago have made a blanket statement that all use-of-force incidents are of public interest. Given that the vast majority of police shootings are considered “justified,” transparency policy should be weighed carefully against concerns for Casey’s privacy and the will of the family members of the deceased.
If the shooting is considered controversial or criminal, the decision to release is more straightforward. If Casey stated that Sam never advanced toward the officer with a knife but the officer maintains that Sam in fact did, Casey and Sam’s families will expect body-worn camera footage to reveal the officer’s excessive force in shooting Sam. Community members would expect to know whether their neighborhood police officers will be held accountable for misconduct. Civil rights organizations will seek to determine whether there is a pattern of wider discrimination. The body-worn camera footage, in this scenario, presents a more compelling case of public interest.
The challenge for policy makers is to adopt a video-release policy that meets the social and political needs of their communities. For Chicagoans, whose police department is under a consent decree from the Department of Justice, police accountability might outweigh concerns for privacy, at least in this moment in history. For departments without a history of misconduct, the moral pendulum may swing in favor of discretion.
Though more research is warranted, there is enough information about body-worn cameras that policy makers can make smart decisions about the use of BWCs and the laws that govern the storage, viewing, and release of recordings. This is important not only for forming a justifiable ideological position but also because different policies will require different resources—from data storage and cybersecurity upgrades to additional personnel—that each have real-dollar costs.
As body-worn cameras proliferate, the relevant question for policy makers is no longer “should we adopt a BWC program?” but “why don’t we have this yet?” This technology is an idea whose time has come, and there is no excuse to neglect careful consideration of the other issues that will inevitably arise. Policy makers should avoid reactionary lawmaking in favor of a more thorough vision for 21st-century policing, with open eyes and sound judgement.
Katie Miller is a master in public policy student at the John F. Kennedy School of Government at Harvard University. Prior to Harvard, Miller worked as a detective and uniformed officer at the DC Metropolitan Police Department as well as a research associate at the Center for American Progress, a think tank in Washington, DC. She holds a BA in political science from Yale University.
Edited by: Bright Simons
Photo by: Ryan Johnson, Wikimedia
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