Body-worn police video technology will be adopted by more Washington state agencies. The time is ripe to discuss the policy implications of the data it is collecting and its impact on privacy. As Seattle Police Department prepares to partner with local technology experts on video redaction and posting, in preparation for its body cam pilot, Drew Hendricks takes a closer look at the existing legal framework for police video, as well as some of the less-discussed potential unintended consequences of body cams.
By Drew Hendricks
Body-worn police cameras have become the latest in a long line of technological solutions to the ongoing crisis of confidence in police accountability. Why are they suddenly so much in the news, when comparable products have been around for at least a decade?
Police video will never be as transparent to the public as it will be to police administrators and managers.
TASER International and BWVSG
The Body Worn Video Steering Group has promoted the use of “Body Worn Video” as they term it, since mid-2013. This group, which was started in the UK but now includes many US agencies as well, is endeavoring to “design the future of Body Worn Video.” Notably, BWVSG is in part sponsored by Reveal Media, a UK company which manufactures body worn cameras. BWVSG advocacy and the advertising and lobbying efforts of US-based company TASER International are part of why we’re been hearing so much about this technology in the last few months, despite relevant products being available now for nearly a decade.
With proponents calling for a national “Michael Brown Law,” which would mandate body worn cameras on all police officers, some local departments, such as Seattle Police Department, are seeking help from local technologists to address such practical problems as the burden of fulfilling public records requests on video, and the protection of privacy required by law. Other Washington State departments are approaching the technology more cautiously.
Laws governing police video and its use have more than thirty years of history with the use of in-car video, most of which relates directly to body mounted police cameras. Here’s an overview of some of the relevant law that privacy activists and police officers alike are now scrutinizing in the context of body cams.
Property Right to Exclusive Use
Washington State Law (RCW 60.63) gives individuals a property right to the exclusive use of their own “name, voice, signature, photograph, or likeness.” This law provides for Superior Court injunctions or financial liabilities of the greater of $1,500 or actual damages for infringements of this right of privacy.
In other words, a police video clearly depicting a person on video – for instance reciting their name, date of birth, and address – would normally be considered private in most circumstances under RCW 60.63 unless some explicit transfer of that property right to the police agency were also obtained. Exceptions include the use of the likeness “in connection with matters of cultural, historical, political, religious, educational, newsworthy, or public interest.” The law has been cited by public employees seeking an injunction to withhold their employee photographs under Washington State Public Records law.
It is likely that the courts would hold that newsworthiness or public interest will exempt the recording of most police body video by default, but the release of that police video to third parties complicates that assumption – especially in cases where no arrest took place or no citation was issued, undermining the newsworthiness of the video. The potential for exploitation of police video for entertainment purposes would in most cases conflict with this law and give subjects the right to sue before, or after, release if their faces were not obscured.
Dual-Party Consent to Audio Recording
Washington State Law (RCW 9.73.030) also has a fairly robust requirement that any audio recording of a private conversation must accompany an announcement that the recording is taking place, or else be protected by an implicit consent to record — such as presence in a public place or presence at a newsworthy event — or exigent circumstances in the case of police who are trying to investigate kidnappings or potentially lethal crimes. While notification is likely to be a low hurdle to initiating most recordings, and most criminal encounters with the police involve inherently newsworthy events, not all police encounters with the public involve criminal citations or arrests.
(Editor’s note: The state Attorney General recently decided that police do not have to ask permission to use body cameras to record their interactions with the public in most circumstances.)
Because police cannot predict which encounters will result in an arrest or an assault, a tendency to record any and all encounters to serve officer safety will prevail. This tendency to record more often than not raises significant issues around notification and its effects on witness cooperation with police. The likely solution to this tension between officer safety and witness cooperation will be officer discretion in whether the video is running or not at any given time. For advocates of the Michael Brown Law, this officer discretion is precisely the site of significant abuse of the public trust. Seattle saw this in August 2010 when former SPD officer Ian Burk shot and killed John Williams just out of view of his dash mounted camera.
Public Records and Common Exemptions
After police agencies have collected a video recording of a person, from any source (their own equipment or private industry), that record becomes a public record under Washington State’s Public Records Act (RCW 42.56). Whether it can be withheld by police will generally rely on whether it is part of a current, ongoing investigation or whether it is deemed to fall under some other provision, which narrowly and explicitly exempts it from disclosure. Police videos from drug investigations often use an exception to the Public Records Act; “Information revealing the identity of persons who are witnesses to or victims of crime or who file complaints with investigative, law enforcement, or penology agencies, other than the commission, if disclosure would endanger any person’s life, physical safety, or property.” (RCW 42.56.240 (2)) There are dozens of similar exemptions to police records, including an exemption for material which describes law enforcement techniques which are held to be secret to maintain their effectiveness.
Most often cited is the exception “Specific intelligence information and specific investigative records compiled by investigative, law enforcement, and penology agencies, and state agencies vested with the responsibility to discipline members of any profession, the nondisclosure of which is essential to effective law enforcement or for the protection of any person’s right to privacy.” (RCW 42.56.240 (1)) This exception has been successfully used to withhold phone numbers assigned by a cellular telephone carrier to police officers handsets, on the theory that the records if released would become intelligence for the requestor and enable interference with police communications. Videos which depict undercover officers obtaining criminal intelligence from unwitting informants would undoubtedly fall under this exception.
The Cost of Processing Public Records Requests
Police agencies in Washington State have significant and well-tested exceptions already in place to allow them to withhold videos which would violate privacy (http://www.mrsc.org/subjects/legal/prd.aspx). The sticking point in policy terms seems to be the budget that agencies want to devote to processing public records requests. Video takes a long time to review, and for public records purposes must be reviewed by a person well trained in public records laws. As most police agencies are forced to reduce budgets, public records costs have become a routine complaint to the legislature each year as agencies argue for more, and more restrictions on public records access. The estimate mentioned earlier of taking four years to review and release just six months of collected video is based on a typical records response strategy of taking only one hour per day to review any given records request, working through each request in turn and releasing records in installments, in the hopes that requestors will become bored and abandon the balance of an incomplete response. That abandoned response represents many hours of effort saved, in the end.
Police Union Opposition
If an agency really wants to put the brakes on a video release, they can cite the requirement of third-party notice prior to release, which can throw the request into the courts for injunctions by those third parties. This can add months to a release timeline and raise the costs to the requestor well beyond the budgets of most individuals. This is especially true where the subjects in the video are the members of police unions opposed to the political programs of the requestor or her organization. Police video will never be as transparent to the public as it will be to police administrators and managers. This is one of the main reasons that some police unions oppose the technology, and demand that it be part of labor negotiations prior to implementation.
Coming Soon: Live Streaming, Facial Recognition, Big Data-Mining
Today’s video technology generally requires lengthy and regular data downloads, archiving and cataloging of the video files for later retrieval and use, and eventual destruction after a time set in state law or department policies. The future of this technology, however, is moving toward live streaming video for dispatch and intelligence use. The intermediate step is the archiving of wireless video and audio by the officer’s patrol car, so that even in the case of an officer’s death or kidnapping, evidence will still exist to show investigators who it was that took an officer hostage and left his vehicle behind.
Both of these future uses of body worn video open up questions around how data is encrypted and transported to keep it from becoming a remote view into police operations for the wrong eyes. They also raise questions about how much video intelligence and facial recognition will be integrated into police departments which already use automatic license plate readers (APLR) to catalog nearly every vehicle on their patrol routes today.
The technology to use machines to sort video data automatically, and produce very large data sets about the movements of persons not under individualized suspicion has already been seen in the APLR data set released by the City of Seattle in 2013 in its ongoing program. The Wifi Mesh Network deployed downtown by the Seattle Police Department was recently shut down in view of public concerns expressed about its use for monitoring anyone with a Wifi-enabled smart phone, whether on foot or in a vehicle, anywhere in downtown Seattle.
Hemisphere: Broad Location Surveillance
But this kind of broad location surveillance already exists under public-private programs such as AT&T’s Hemisphere Program, available to Seattle gang detectives and the Seattle-based Washington State Fusion Center.
Hemisphere lets officers search several years of location data for any cellular telephone which at some point speaks through an AT&T switch. In most cases it reports the present position within about an hour of the request. It can even locate the unknown new phone number for a user who destroys his old phones to avoid detection, by tracking what phones that user calls from their new number. The future of these kinds of big data applications may escape civil society regulation by remaining in private industry, including body cameras on convenience store clerks, sales persons in the mall, and utility employees. Once private industry has compiled such records, existing laws allow police to demand these business records, and in many cases they will be sold, or even given to agencies voluntarily.
The Accountability Challenge
The core question of police accountability is not solved by body worn video which is controlled by police departments, because the core question in any system of accountability is whether that system is truly adversarial. No one would expect a criminal syndicate to investigate itself, evaluate whether its henchmen and associates had followed policy, and then issue a report to the public that it was going to continue committing crimes after a three-hour class on sensitivity to cultural issues surrounding the use of force on developmentally disabled children. Yet that is exactly what many police use of force cases represent to the skeptical public which judges their credibility, and decides that it might be a better idea to “Burn this B—- down.”
Independent Custodians: The Court System?
To establish and maintain credibility, any system of police accountability has to be independent of those being held to account and at least periodically find that police use of force is not justified. For that reason, I don’t think that police body worn video or dash mounted video, should be controlled by police departments. If we’re going to keep our current legal system, the only remaining sensible alternative would be to have the court system handle such data as a custodian of records, just as they already are when cases are brought to trial. The technology to do this wirelessly exists already, and the security protocols for handling the most sensitive categories of personal data are already well established within the courts.
What about Discrepancies with Written Reports?
Not addressed in most examinations of this issue is what will happen to written police reports when they start being routinely compared to police video and found wanting. In the Rodney King case in 1991, the discrepancies between the written police report and the third-party videotape those officers did not know about was part of the spark of outrage when a Simi Valley jury exonerated four officers in a State trial of the case. Two of the officers were later convicted in a Federal civil rights trial and sentenced to 30 months in prison, but the first trial’s outcome led to 54 deaths, 2,383 injuries and more than 13,200 arrests as enraged residents rioted for a week.
How Is Video Interpreted, and By Whom?
The expectation is that video will clarify what happened, but the truth is that police see their use of violence very differently than the public sees it. Video and photography is not the objective truth, it’s always a mere representation of it – limited by perspective, the angle the camera faces (or does not face), when the video is recording (or is not recording). Police body worn video will always focus on what the person they are facing is doing with their body, not on what the officer is doing with theirs. In many ways it will raise more questions than it answers, and tend to show its subject in the worse light than the officer. Officers often bristle at public cameras facing them, because they know this. They are trained to be in control, and they can’t control the camera unless it is theirs. That is why third party video will still be an important activist tool well into the future.
The Risk of Normalizing Violence
Body worn cameras might also have the unwanted effect of desensitizing whole generations of juries to the meaning of interpersonal violence, as police trainers explain that attacking “subjects” is routine when the “subject” fails to hear an order, or doesn’t move fast enough for the officer making it. Public witnesses who view the same video without police cultural translation will come away with a very different perspective on the same images.
Afterward: The Uncertain Conclusions of the Rialto Study
A recent California study found that body cameras were associated with a reduction in Rialto’s police use of force by as much as 50%. Many media sources misreported that citizen complaints dropped by 90% as well. In actuality, the total number of complaints during the 12 month study period (3) was much lower than previous years, but two of those three were complaints against officers with cameras. The author of the study wisely stated that “we were unable to compute a treatment effect as planned, since the overall reduction was so large that there were not enough complaints to conduct any meaningful analyses.” The prior three years had 36, 51, and 28 complaints. Changes to the Department’s complaint process were not discussed in the study so cameras could not be isolated as the causative factor in the overall reduction of complaints. Media coverage of the study was likewise not discussed in the study and also could not be evaluated for causative effect on complaints. SOURCE PDF