EFF opposes police Body Worn Cameras (BWCs), unless they come with strict safeguards to ensure they actually promote officer accountability without surveilling the public. Police already have too many surveillance technologies, and deploy them all too frequently against people of color and protesters. We have taken this approach since 2015, when we opposed a federal grant to the LAPD for purchase of BWCs, because the LAPD failed to adopt necessary safeguards about camera activation, public access to footage, officer misuse of footage, and face recognition. Also, communities must be empowered to decide for themselves whether police may deploy BWCs on their streets.
Prompted by Black-led protests against police violence and racism, lawmakers across the country are exploring new ways to promote police accountability. Such laws are long overdue. A leading example is the federal Justice in Policing Act (H.R. 7120 and S. 3912). Unfortunately, this bill (among others) would expand BWCs absent necessary safeguards. We respectfully recommend amendments.
Necessary BWC safeguards
Police BWCs are a threat to privacy, protest, and racial justice. If worn by hundreds of thousands of police officers, BWCs would massively expand the power of government to record video and audio of what we are doing as we go about our lives in public places, and in many private places, too. The footage might be kept forever, routinely subjected to face surveillance, and used in combination with other surveillance technologies like stationary pole cameras. Police use of BWCs at protests could discourage people from making their voices heard. Given the many ongoing inequities in our criminal justice system, BWCs will be aimed most often at people of color, immigrants, and other vulnerable groups. All of this might discourage people from seeking out officers for assistance. In short, BWCs might undermine community trust in law enforcement.
So EFF opposes BWCs, absent the following safeguards, among others.
Mandated activation of BWCs. Officers must be required to activate their cameras at the start of all investigative encounters with civilians, and leave them on until the encounter ends. Otherwise, officers could subvert any accountability benefits of BWCs by simply turning them off when misconduct is imminent, or not turning them on. In narrow circumstances where civilians have heightened privacy interests (like crime victims and during warrantless home searches), officers should give civilians the option to deactivate BWCs.
No political spying with BWCs. Police must not use BWCs to gather information about how people are exercising their First Amendment rights to speak, associate, or practice their religion. Government surveillance chills and deters such protected activity.
Retention of BWC footage. All BWC footage should be held for a few months, to allow injured civilians sufficient time to come forward and seek evidence. Then footage should be promptly destroyed, to reduce the risks of data breach, employee misuse, and long-term surveillance of the public. However, if footage depicts an officer’s use of force or an episode subject to a civilian’s complaint, then the footage must be retained for a lengthier period. Stored footage must be secured from access or alteration by data thieves and agency employees.
No face surveillance with BWCs. Government must not use face surveillance, period. This includes equipping BWCs with facial recognition technology, or applying such technology to footage from BWCs. Last year EFF supported a California law (A.B. 1215) that placed a three-year moratorium on use of face surveillance with BWCs. Likewise, EFF in 2019 and 2020 joined scores of privacy and civil rights groups in opposing any federal use of face surveillance, and also any federal funding of state and local face surveillance.
Officer review of footage. If footage depicts use of force or an episode subject to a civilian complaint, then an officer must not be allowed to review the footage, or any department reports based on the footage, until after they make an initial statement about the event. Given the malleability of human memory, a video can alter or even overwrite a recollection. And some officers might use footage to better “testily.”
Public access to footage. If footage depicts a particular person, then that person must have access to it. If footage depicts police use of force, then all members of the general public must have access to it. If a person seeks footage that does not depict them or use of force, then whether they may have access must depend on a weighing by a court of (a) the benefits of disclosure to police accountability, and (b) the costs of disclosure to the privacy of a depicted member of the public. If the footage does not depict police misconduct, then disclosure will rarely have a police accountability benefit. In many cases, blurring of civilian faces might diminish privacy concerns. In no case should footage be withheld on the grounds it is a police investigatory record.
Enforcement of these rules. If footage is recorded or retained in violation of these rules, then it must not be admissible in court. If footage is not recorded or retained in violation of these rules, then a civil rights plaintiff or criminal defendant must receive an evidentiary presumption that the missing footage would have helped them. Members of a community should have a private right of action to enforce BWC rules when a police department or its officers violate them. And departments must discipline officers who break these rules.
Community control over BWCs. Local police and sheriffs must not acquire or use BWCs, or any other surveillance technology, absent permission from their city council or county board, after ample opportunity for residents to make their voices heard. This is commonly called community control over police surveillance (CCOPS). Likewise, federal and state law enforcement must not deploy BWCs absent notice to the public and an opportunity for opponents to object.
Many groups have published model BWC rules, including the ACLU, the Leadership Conference on Civil and Human Rights, the Constitution Project, and the Police Executive Research Forum. The safeguards discussed above are among the rules in some of these models.
Amending the Justice in Policing Act
We appreciate that the Justice in Policing Act’s section on federal BWCs (Sec. 372) contains safeguards discussed above. We respectfully request three amendments to the bill’s provisions on BWCs.
Federal grants for state and local BWCs. The bill provides federal grants to state and local police to purchase BWCs. See Sec. 382. But the bill’s rules on these BWCs are far weaker than the bill’s rules on federal BWCs, and lack safeguards discussed above. State and local BWCs are no less threatening to privacy, speech, and racial justice than federal BWCs. For too long, BWCs have flooded into our communities, often with federal funding, in the absence of adequate safeguards. Thus, please amend the bill to apply all of its rules for federal BWCs to any grants for state and local BWCs.
Also, please amend the bill to prohibit state and local agencies from obtaining federal grants for BWCs unless they first use a CCOPS process to obtain permission from their public and elected officials. If the residents of a community do not want their police to deploy BWCs, then the federal government must not fund BWCs in that community.
For federally funded BWCs used by state and local police, these federal rules should be a floor and not a ceiling. Thus, the bill must expressly not preempt state and local rules that ensure even more police accountability and civilian privacy then does the federal bill.
Face surveillance with BWCs. The bill allows the application of face recognition technology to footage from BWCs, provided there is judicial authorization. See Sec. 372(q)(2) & 382(c)(1)(E). But EFF opposes any government use of face surveillance, even with this limit. We especially oppose face surveillance in connection with police BWCs. Thus, please amend the bill to prohibit any equipping of police BWCs with facial recognition technology, and any application of such technology to footage from BWCs, as to both federal BWCs and federal funds for state and local BWCs.
Public access to BWC footage. For purposes of public access to federal BWC footage under the federal Freedom of Information Act (FOIA), the bill divides footage into three categories. If footage depicts an officer’s use of force, then anyone may obtain it. If footage depicts both use of force and resulting grievous injury, then such release must be expedited and occur within five days. We agree with these two rules.
The bill further provides that if footage does not depict use of force, then it may only be released with the written permission of the civilian depicted. See Secs. 372(a)(4), (j), & (l). This is a reasonable attempt to balance the accountability benefits and privacy harms of public disclosure of BWC footage. Still, we respectfully suggest a somewhat different approach. The civilian depicted should not have an absolute prerogative to veto public disclosure. Rather, the civilian’s opposition should be one factor in the larger balancing by a court of the privacy and accountability interests. Courts routinely conduct such balancing upon assertion of the FOIA exemptions for personal privacy.
For example, if footage shows an officer cussing at the mayor, the public should have access, even if the mayor believes release would be politically damaging to them. Likewise, if footage shows officers ransacking a car absent any suspicion, the public should have access, even if the police department conditioned a cash settlement with the driver on a non-disclosure agreement. In such cases, the accountability benefits of disclosure would outweigh the privacy harms. On the other hand, if footage does not depict officer misconduct, disclosure will rarely be justified.
Conclusion
The time is long past for new measures to end violence and racism in policing. But BWCs are not a panacea. Indeed, without necessary safeguards, BWCs will make the problem worse, by expanding police surveillance of our communities without improving police accountability. We urge policymakers: do not put more BWCs on our streets, unless they are subject to strict safeguards.
Published November 03, 2020 at 06:49AM
Read more on eff.org