Body Cameras, Law Enforcement, and Privacy Law
Advocacy
of body camera policing reform has been growing in the United States in
response to a widespread and increasing distrust of law enforcement among minority
communities.[1]
Body camera reform advocates have supporting statistics on their side. In 2014,
the Police Executive Research Forum (PERF), with support from the Department of
Justice, published the report, Implementing
a Body-Worn Camera Program: Recommendations and Lessons Learned, extolling the
perceived virtues of implementation of body cameras.[2] Broadly, police officials familiar
with the use of body cameras state that the cameras increase officer
professionalism, help agencies evaluate and improve officer performance, and
allow agencies to identify and correct structural problems. As a result of
these reforms, these officials further claim that agencies receive fewer
complaints, and encounters between officers and the public have objectively
improved.[3] Evidence also suggests
that when police officers wear body cameras there is a decline in use-of-force incidents.[4]
However,
body cameras have serious implications for the public’s privacy rights,
particularly when it comes to recording victim interviews, nudity, and private
residences. The advent of widespread body camera use may be contributing to one
of the most invasive forms of privacy violations and private monitoring in
years. Crucial questions arise when dealing with the proliferation of body
cameras in communities nationwide: Who has review access to the thousands of
hours of footage collected and stored by police departments? Should body
cameras always be on and recording, even when an officer enters a private
residence or interviews a victim of traumatic crime or sexual assault? When
should the public be able to view body camera footage? How long does an agency
retain recordings, and to what extent may they be used in investigations? Privacy
law will have to keep up with police policy and the increasing surveillance capacity
of body cameras.
As
a default, footage from body cameras can be considered public record. It’s not
hard to imagine a situation in which police officers wearing body cameras enter
and leave a private residence without making an arrest—should that footage be
available to the public at large? State public disclosure laws, often known as
freedom of information laws, govern when footage from body cameras is subject
to public release.[5]
However, most of these laws were written long before the advent of body
cameras, so there are gaps in statutory considerations. While states like North
Dakota have passed bills that would exempt body camera footage that captures the
inside of a private place from public record requests, often police departments
are left to their devices to contend with the serious privacy issues at stake and
fill in legislative gaps when formulating body camera recording disclosure
policy..
Most
state public disclosure laws have dealt with these considerations by means of exceptions.
For example, footage related to an ongoing investigation may be exempted from
public freedom of information requests. And, agencies have the power to adopt
policies to protect the privacy interests of the communities they service. For
example, police officers may have discretion to deactivate their cameras during
interviews with crime victims.[6]
However,
the law, in grappling with making these exemptions and discretionary policies,
may have to make procedural concessions. It is questionable whether police
officers should have discretion to
choose when to activate their body cameras. It is difficult for the law to
delineate every single possible encounter for which officers should have their
body cameras turned on. Stops, frisks, searches, arrests, consensual interviews
and searches, enforcement actions, and hostile encounters are a good start.[7] Then, the law must
consider what happens when an officer fails to activate their body camera
pursuant to a legal policy. Should unrecorded encounters be subject to
exclusionary rules? When most, but not all, encounters are recorded for
fidelity, the absence of a recording of an important encounter may cast doubt
on its evidentiary value.
The
alternative—always having body cameras active—seriously interferes with the
officer’s own privacy interest, too. Should body cameras be active when an
officer uses a bathroom, or changes clothes? Do we really want there be a
review process for dealing with footage and sound of an officer’s bowel
movements? And, knowing the invasiveness of constant recording, would that
affect the enrollment rate for new cops, a profession with members who already
risk their lives? These difficult questions demonstrate how privacy and policy
interests may interfere with law enforcement and subsequent legal proceedings.
The goal of body camera programs is to foster transparency and accountability, but it should not come at the cost of civil liberties and privacy interests. Body cameras are not the end-all solution that early advocates had hoped for. In addition to the egregious invasions of a community’s privacy, body camera programs can be prohibitively expensive. When weighed against the violations of civil liberties and privacy interests, communities have difficult considerations to make. The law still has difficult questions with which to grapple, and the proliferation of body cameras on police officers may serve to create the most invasive method of Big Brother, in-person citizen surveillance we’ve seen.
Alec Shapiro is a J.D. candidate, 2020, at NYU School of Law.
[1] Justin
Hansford, Body cameras won’t stop police
brutality. Eric Garner is only one of several reasons why., Wash. Post., Dec. 4, 2014.
[2] Lindsay Miller, Police Executive Research Forum, Implementing a Body-Worn Camera Program: Recommendations and
Lessons Learned (2014).
[3] Id.
[4] Feeney,
Matthew, Police Body Cameras Raise
Privacy Issues for Cops and the Public, Cato
at Liberty (Feb. 12, 2015, http://www.cato.org/blog/police-body-cameras-raise-privacy-issues-cops-public).
[5] Police Executive Research Forum, supra note 1 at 17.
[6] Id.
[7] Feeney,
supra note 4.
