Invasion of Privacy or Public Safety Measure?

By Paul Anderson, Larry Frankel Legislative Fellow, ACLU of Pennsylvania

Police Body Camera

The recent tragedies in Ferguson, Staten Island, Cleveland, Los Angeles and now Madison have thrust questions of how law enforcement interacts with members of the public into the national spotlight. One issue of specific focus has been available technologies that would—ideally—allow for greater oversight and accountability of officer interaction with the public. Body-worn cameras that record interactions made during an officer’s shift have advocates from both the police and civilian worlds. Members of the public believe that recording of encounters will better document potential police misconduct and provide greater transparency over state actors, and some parties in law enforcement envision body cameras can be valuable tools to increase public trust in the police.

Police body cameras are an admittedly thorny issue for the ACLU because of the potential for placing two equally compelling interests on a direct collision course. The aforementioned desire for greater accountability of state actors is offset by privacy interests of individuals who are recorded. Any body camera policy, whether imposed by the General Assembly or implemented at the municipal level, must delicately balance these interests.

At the outset, the police should have a near-zero discretion policy in turning off the cameras during encounters with the public. The only exceptions should be for conversations involving crime victims or witnesses. Too much latitude in powering off the cameras will inevitably lead to manipulation by some officers, as shown in a recent excessive force lawsuit in St. Louis.

In addition, all subjects should be made aware that their interactions with police are being recorded, but higher standards should govern in certain circumstances. For example, a recording inside a person’s home should be permitted in a non-emergency situation only with the consent of the residents or pursuant to a valid search warrant. Similarly, policies should accommodate crime victims and witnesses who request that a camera be turned off before divulging sensitive information.

The actual recording of encounters is not the only aspect of body cameras that raises significant privacy concerns. Storage policies must also be especially sensitive of individual privacy interests. Retention policies, like all other components of a comprehensive policy, should be directed to promote government oversight or other public interest. The interest in holding the state accountable is much lower when there is no evidence or accusation of police impropriety. Therefore, videos without any public or investigatory interest should be deleted as soon as is feasibly possible. Recordings that either involve significant police escalation or involve an incident that a civilian complains about should be retained longer, even if they are not being used in any criminal proceeding. The social interest in these recordings is much higher, meaning they should be retained and made available, in redacted form if necessary.

Finally, it is important to remember that use of body cameras is, at bottom, designed to permit greater public oversight of government behavior, not vice versa. Therefore, any legislation should include sweeping prohibitions against the use of body cameras as a general surveillance tool. The potential for misusing cameras to secretly record First Amendment activity- such as political protests or religious activity- is significant enough to create a demand for policies that explicitly disavow this type of monitoring.

Body cameras are not a panacea. In the Staten Island incident, a bystander captured video evidence of an officer using a chokehold on Eric Garner that was in violation of NYPD policy. Even though the coroner ruled Garner’s death was a homicide caused by compression of the neck and chest, a grand jury still declined to indict the officer responsible. Given deeper questions of structural inequality underscoring the current policing landscape, it is unlikely that increased recording of encounters alone will sufficiently restore public trust. However, body cameras can provide a potentially useful additional level of government oversight, as long as any legislative or administrative policies are developed with a clear and principled balancing of two crucial—and occasionally competing—interests.

Paul Anderson is the Larry Frankel Legislative Fellow at the ACLU of Pennsylvania and a third-year student at Penn State Dickinson School of Law.

“Everyone’s a little bit racist”

By Paloma Wu, Legal Fellow, ACLU of Pennsylvania

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At this American civil rights impasse, we are up against a powerful and dangerous fantasy: the delusion that our intention to be race neutral makes us so, and the delusion that our intention not to discriminate means we don’t. No longer are slur-hurling city officials, police-protected lynch mobs, and smoke-filled redlining rooms the most formidable force opposing equality in America. It is all of us.

A growing body of research on implicit racial bias shows that about 75% of whites and Asians demonstrate an implicit bias in favor of whites compared to blacks, and over 200 related published studies show that implicit bias influences judgment, decisions, and behavior. An onslaught of images, lore, and language continuously tie brown and black skin in with the negative. Implicit racial bias operates powerfully but in the background, at the unconscious level, impacting our judgment and shaping our decisions such that we often act contrary to our conscious intent to behave in a race neutral way. Most insidiously, our implicit racial bias calls the shots without us registering that it has. We reason away the race biased logic that formed the basis of our decision, and we cleave to the far more flattering race-blind version of ourselves that we deeply personally identify with.

Since taking the well-validated Implicit Association Tests (“IATs”), I cannot claim to be more sturdily built. I am ashamed, but not surprised, to learn that I strongly associated black people with having weapons on the Weapons-Harmless Objects IAT, and that was just the beginning. Despite who I am, what I have done with my life, who I intend to be, and that I am neither white nor male, I am a petri dish of implicit racial and gender bias. Sharing my corner of shame: most of the eight million IAT takers, including Malcom Gladwell. Gladwell, who is half black, deftly explained in his bestselling book, “Blink,” that his “moderate automatic preference for whites” on the IAT left him “feeling creepy.” For others, the revelation of racial bias is embarrassing, deeply humbling, and disturbing.

After you take a few IATs, consider this:

  • White Americans, on average, vastly overestimate the criminality of blacks.
  • Many Americans incorrectly believe that black Americans use more drugs than whites: five times as many white than black people use drugs in this country, but black Americans are sent to prison for drug offenses at 10 times the rate as white Americans.
  • “Shooter bias” studies show that black and white shooters both show bias against blacks in both response times and errors, meaning we will shoot black people more often and faster than we will whites.
  •  In shooter bias studies, we even pick up the pace if first shown a negative media article about a black perpetrator of a crime.
  •  Americans of all races more often see blacks as perpetrators and whites as victims; in one study, 70% of viewers of a crime story who falsely recalled seeing a picture of the perpetrator believed that perpetrator had been a black man.

Then consider how a blazing color line separates blacks and whites in crime and punishment:

A select few departments are trying to incorporate racial bias training to curb the tide, but the tide is nearly as powerful as our fantasy that it does not exist. The common refrain of police officers, elected officials, district attorneys, and policy makers with skin in this game is not “We Shall Overcome,” but rather—“We Did Not Intend.” But our knowledge about implicit racial bias in this era of political correctness renders the intent issue moot. Equal protection questions can only be addressed through data and analysis—do our laws in fact discriminate and are they in fact discriminatorily enforced. There is no silver bullet, but it is a necessary step, along with our acceptance of implicit racial bias as the norm: the unintentional constant that we must build in to any algorithm we use to formulate a next step—if we want it to be forward.

Also, feel free to sing along to this Avenue Q song, for a boost with the acceptance part…

(Stay tuned for Part 2 of this post: “The Effects of Implicit Racial Bias in Law Enforcement and Lessons from the Era of Anti-Lynching Legislation.”)

This post is part of a series in honor of Black History Month.

Paloma Wu joined the ACLU as an awardee of the 2014 Simpson Thacher & Bartlett LLP Public Service Fellowship. As a Simpson litigation associate, Paloma worked on antitrust, securities, and intellectual property matters, and she represented clients in successful prisoner civil rights (Pogue v. Diep) and asylum cases.