NEW FRONTIER

Privacy Activists Fight Police Bodycams

Everyone wanted police body cams, but the new accountability tool raises numerous privacy and public records questions.

02.23.15 10:15 AM ET

Prodded by the public outcry following Ferguson and federal grants from the Obama administration, police departments across the country have launched pilot programs to equip officers with body cameras. But the new technology has outpaced department guidelines and public records laws, raising a dizzying amount of questions over who gets access to the hours and hours of footage.  

After months of protests following the police-involved deaths of Michael Brown and Eric Garner, everyone was ready for a solution, and body cams presented an effective, relatively easy fix. A December CBS poll found 91 percent of respondents agreed with the need for on-duty police officers to wear body cameras. Likewise, The Washington Post found support for body cams at 86 percent at the end of the year. Law enforcement, which felt unfairly maligned by the protesters, was mostly on board as well, seeing body cams as a way to prove that the vast majority of police do their job professionally.

The ACLU called for recording all police interactions with the public in a 2013 white paper, but as ACLU senior policy analyst Jay Stanley noted in a blog post this month, issues with public record laws raised several problems with the ACLU’s premise. 

“What we called for is that this technology be rolled out in a regime in which 99 percent of the footage never sees the light of day, except in cases where it’s flagged,” Jay Stanley said in an interview. “Some of the state’s record laws threw a monkey wrench in that vision.”

Stanley doesn’t want to gut state transparency laws, but privacy advocates and cops alike worry that the massive amounts of footage culled from police body cams will be subject to burdensome and invasive public records requests. It’s an odd situation where the desire for police accountability is running up against Americans’ love of privacy and fear of mass surveillance.

The Los Angeles Police Department will soon be the largest department in the country to use body cams, deploying roughly 7,000 of the devices. But the department, following a precedent set by San Diego’s police force, takes the position that footage is evidence and therefore exempt from California public record law.

At a recent townhall meeting, LAPD Chief Charlie Beck said that he felt a “moral prohibition” to protect the footage as well.

“People invite us into their homes on their worst possible day, and I don’t think they invite us with the intention of having that interaction made public,” Beck said, according to the L.A. Times. “Families call us when they’re in crisis. Victims call us when they’ve had horrific things done to them by evil people. And to make those things public revictimizes them, doesn’t serve justice. And I don’t think it's the right thing to do.”

Other police departments and cities across the country are weighing similar questions. Last Wednesday, a study group formed by the Baltimore mayor released a report with recommendations on body cam policies for the Baltimore Police Department. However, after three months of work, the group couldn’t come to a conclusion on issues such as whether body cams should be turned on when interviewing victims of sexual assault, or whether footage should be turned over to the Office of the State’s Attorney. 

The Metropolitan Police Department of Washington, D.C., denied a FOIA request for body cam footage from the Reporters Committee for Freedom of the Press, arguing it didn’t have the technology to go through and redact citizens’ faces.

But lawmakers in several states, backed by police groups, are proposing legislation that has transparency advocates worried.

In Missouri, legislators have floated two bills blocking access to body cam footage. Democratic State Attorney General Chris Koster has proposed carving out an exception to the state’s sunshine laws in order to prevent, as he calls it, “a new era of voyeurism and entertainment television at the expense of Missourians’ privacy.” The Missouri ACLU’s Sarah Rossi called the proposal an “end run around Missouri’s Sunshine law.”

Three Minnesota lawmakers, all former cops, have proposed an even stricter bill that would block all public access to body cam footage and dispose of all footage not related to an ongoing investigation.

In Washington state, a public records battle has been simmering over body cam footage as well. The state legislature is considering two bills to tighten state records. One, backed by the state chapter of the ACLU, would restrict access to footage while setting rules for when police can turn off body cams. The second, supported by sheriffs and police chiefs, pushes much more stringent restrictions on access to body cam footage without any accompanying rules for police.

“The reality is that these cameras, they essentially amount to roving surveillance cameras,” Jared Friend, director of technology for the American Civil Liberties Union of Washington State, told the News Tribune. “It’s the kind of thing that could be used for fishing expeditions.”

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This is not an idle concern. Unlike the federal Freedom of Information Act, Washington’s public record law does not have any language limiting “overbroad” requests. So it was that an anonymous Washington man last year requested every single record from the Snohomish County Sheriff’s Office going back to 1776. The Washington State Police received another request in November for “any and all” footage it had, a request it estimated it would take 42 years to complete.

As a result, the Seattle Community Police Commission, which has been wrestling with these questions for months, recommended recently that the Seattle Police Department delay rolling out police body cams.

Public record trolling aside, there are more serious questions surrounding police department policies—when officers are required to turn on their body cams, when the department releases the footage, and who gets to see the footage.

Ron Hosko is the president of the Law Enforcement Legal Defense Fund and a former assistant director at the FBI. He is in favor of police body cams, saying they will curb both unprofessional police and bogus charges of brutality against officers. But he said in an interview that they are “uncharted territory” for departments.

“If there is an event that is contentious, obviously the first question is if there’s camera footage, and if so, why can’t we see it right now?” Hosko said. “I think that poses signification risks on both sides.”

“If the footage is favorable to cops, the chief’s desire is going to be to take the air out of a situation,” Hosko continued. “How does that comport with normal procedures, and do some people view it as manipulation?”

The questions go on. How long can departments store and retrieve body cam footage?

“How do the rules work if I’m called to a house, and we go in there and interview people,” Hosko said. “What’s the protocol a year later, if I think it’s a dope house? Can I use that video to draw up a floor plan of the house for a SWAT raid?”

Can law enforcement share body cam footage with each other, including federal agencies? How about a national database of body cam footage, with persons of interest flagged?

Should police body cams be turned on when interviewing victims of sexual assault or other traumatic crimes, and should that footage be subject to discovery in court? Or, as The Atlantic’s Conor Friedersdorf asks, what about access to body cam footage in cases alleging improper police activity?

Should police involved in a shooting be able to review body cam footage before filing their initial statement? (The ACLU does not think so.)

Mother Jones’’s Kevin Drum proposed some basic guidelines. He says police should have no control over what footage gets released, while citizens caught on film should be given some weight, depending on the circumstances.

What is clear is that police departments need to put transparent guidelines in place for body cams. The Houston police are refusing to release their body cam guidelines, the AP reported Sunday. They are not alone. In December, the ACLU’s Sonia Roubini wrote that department policies were lagging behind the spread of body cams:

Only five of these thirty departments sent me their policies. The remaining twenty-five cited various reasons for not doing so: one department told me that they couldn’t share their policy as it was still in draft form; four reported having no policy; and four required a more formalized public records request in order to access the policy. The remaining sixteen departments either responded stating categorical unwillingness to send their policy, or simply did not respond. It’s also worth mentioning that of the five policies that we did receive, only one was publicly available on the police department’s website.

Until best practices are worked out, body cam policies will likely be a patchwork of differing rules and experiments. Despite it all, Hosko remains confident that the end result will be a net good for both the public and the police sworn to protect it.

“I do think over time the positives will outweigh the negatives,” Hosko said. “It will sort through truth and lies and add emphasis to the need to professionalize police activity.”