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