Police Body cams – Rational and privacy concerns

Body cameras have received renewed focus the past two years, due in a large part to several high profile shootings of suspects by police. Some of these shootings have resulted in federal investigations. Although all of the incidents have been at the city or county levels, federal agencies have investigatory powers over civil rights abuses and can take a variety of civil and criminal actions. As stated directly by the U.S. Justice Department, “It is a crime for one or more persons acting under color of law willfully to deprive or conspire to deprive another person of any right protected by the Constitution or laws of the United States.” [1]. Some of the findings of these investigations have raised the question of whether police, at all levels, should be required to wear body cameras while performing their duties. Although I am in support of the idea of body cameras being required, I do not think that it should be mandated at a Federal level. Additionally, I’m uncertain at how effective such a regulation would be.

The use of body cameras raises a number of privacy concerns, both for the officer’s who must wear them and for the public that is being recorded. However, the key part of this is the term public. On issues of privacy and the public, body cameras are no different than any other types of visual and audio recording. Almost all states have laws in place that protect the rights individuals from taking videos or photos while in public. These rights are rotted in the First Amendment have been almost universally upheld by the courts. Additionally, in many states, these laws extend to recording audio as well. In regards to body cameras, the fact that these recordings are continuous and that they are being recorded by officers is not really material in so far as the recordings happen in public spaces.

Still, law enforcement duties are not limited to the realm of the public. Many of their interactions occur in private businesses and private residences, and it is in these places where the risks to privacy are the greatest. In stark contrast to the public realm, individuals in private settings have a much greater expectation of privacy and a corresponding greater number of protections against intrusions of their privacy. Clearly, it is neither ethical nor legal for someone to secretly install a video camera in another’s home. Some argue that requiring police to wear body cameras that record continuously, including inside a residence, is tantamount to using a hidden camera. However, there is a stark difference between the two, at least in the eyes of the law. Federal law, as well as the laws of most states, allow for private recordings as long as one party is aware. While the law mostly deals with audio recordings, the principal has been held to extend to pictorial recordings as well. Essentially, if one person records his or her interaction with another, no laws are broken as long as at least one of the people involved know about it. Thus it is is legal for one spouse to record his or her interactions with the other, or an employee to record the actions of his or her boss on a work site. (See https://www.upcounsel.com/video-surveillance-laws-by-state for more information on laws for different states).

Generally speaking, since it is legal for a private citizen to make a video recording inside of another’s home, it should be legal for law enforcement as well. This partially invalidates the argument that private privacy rights trump the use of body cameras by police. These privacy implications are still important, especially given the sensitive nature of what might be captured when a law enforcement officer responds to an incident inside a home or workplace. Therefore, safeguards must be put in place that protects the release and use of any such recordings. As the use of body cams increases, the ways in which the resulting recordings can be used will need to be carefully determined. The recordings can be a tremendous help to victims of police abuse and can serve as an important deterrent to police misconduct. But, as law enforcement increases their use of technology, these recordings can also be fed into collections systems, processed for facial recognition, or help build profiles of individuals of interest. These and other areas raise significant civil rights concerns.

Given the competing nature of the benefit and harm that body cameras provide, I think the only solution is to allow individual states to craft the policy and regulations related to their use. The issue is too complex for the Federal government to issue a single law on. Individual communities will need to weigh the benefit of police accountability against the risk of privacy abuses when deciding how and when body cams should be required. Many law enforcement agencies have these kinds of policies in place, and more are being added every week. The Leadership Conference on Civil and Human Rights has published a comprehensive list of such policies and grades law enforcement agencies across several criteria such as public availability of the policy, whether the policy has guidelines or rules for when the body cams must be turned on, and other criteria. The full list can be found at https://www.bwcscorecard.org/.

Denver Police, for instance, have body cam policy that is available to the public. Provisions of this policy require that all officers activate their body camera as soon as they are dispatched to or initiate most types of calls (including traffic stops, domestic violence, weapon reports and more). The policy has some limited exceptions for both officer safety (the officer must activate the camera at the first safe opportunity to do so), and privacy reasons (such as recording inside a mental health facility). Still, officers must manually activate the camera, and there are only light administrative penalties for failing to do so. [3]

Law enforcement officers ultimately serve at the discretion of the public and the public’s elected officials. Due to the intricate relationship that police have with the community they serve, laws governing the use of body cameras need to be addressed at the local and state level. Attempting to craft a law that would require the continuous use of cameras is not feasible, and would lead to more harm than good if attempted.

[1] U.S. Department of Justice on civil rights investigations
[2] Upconsel: Surveillance Laws by State
[3] Denver city government policy on police bodycams