We Don’t Even Know How Best to Use Body Cameras—Let Alone Regulate Them

We Don’t Even Know How Best to Use Body Cameras—Let Alone Regulate Them

We Don’t Even Know How Best to Use Body Cameras—Let Alone Regulate Them

Don’t expect an end to police brutality by giving law enforcement a new tool for their arsenal.

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Business is booming for body-camera manufacturers, with the value of shares seeming to rise in proportion to the number of publicized police shootings. “The body-camera industry is ‘feeling phenomenal’ after Ferguson,” read a December Washington Post headline, apparently without irony. TASER International, which makes body cameras in addition to stun guns, saw sales grow by 154 percent this past year, with projections for continued growth; its competitor Vievu broke all of its revenue records in September, following the shooting of Michael Brown in Ferguson, Missouri. And Obama’s push for a nationwide body-camera program translates into the possibility of billions of dollars in hardware and storage revenue for TASER and other manufacturers worldwide.

Behind these profits lies a growing national consensus that too many Americans—and especially black, unarmed African-Americans—are dying at the hands of police, and that body cameras will ensure accountability in law enforcement’s interactions with the public. Just this summer in Cincinnati, an officer’s TASER body camera captured the fatal shooting of Samuel DuBose, a 43-year-old black man who was unarmed. Prosecutors are using the footage in their case against the officer who “intentionally shot” DuBose in the head, and say that the recording provides vital documentation of how a routine traffic stop escalated to murder.

But although 87 percent of Americans surveyed by Pew support police-worn body cameras in theory, little consensus has been reached about how they should be used, who should be able to access the footage, and when. So far, the actual implementation of body camera programs has remained in the hands of state or department officials. In many departments, the responsibility to record, store, review, and release footage rests with the police themselves. With cops controlling the cameras, and often writing the rules surrounding their use, anti-brutality activists fear that body-worn cameras will distract from meaningful reforms, expand surveillance, and exacerbate mass incarceration.

* * *

The rush to outfit officers with body cameras has largely outpaced any sensible policies designed to supervise their use. According to Jay Stanley, a senior policy analyst at the ACLU and expert on body-worn cameras, policies have consistently been implemented with little public or government oversight, in ways that tend to favor the police.

“In all too many places, we are seeing too many policies that are disappointing and inadequate,” Stanley said.

Earlier this year, over 30 civil rights organizations, including the ACLU, NAACP, and Electronic Frontier Foundation (EFF), signed a statement of shared principles on body camera policies, emphasizing that “without carefully crafted policy safeguards in place, there is a real risk that these new devices could become instruments of injustice.” The coalition’s May statement recommends community input into body cam policies, public disclosure of policy, and publicly available footage whenever possible. They also recommend that departments prevent police officers from viewing footage prior to filing reports in order to maintain its “evidentiary value.”

Compliance with these policies, the statement reads, is a “must.”

But officials and legislators have been proposing policies that fly in the face of several, if not all, of the civil-rights group’s recommendations. In at least fifteen states, lawmakers have introduced bills to restrict or withhold body camera recordings from the public and to exempt footage from public records laws, citing a need to protect the privacy of those filmed and the high cost of redacting footage. In many of these states, subjects of the recordings would be able to request access to footage, but the videos will otherwise be treated as private records, not accessible to citizens or journalists. The Kansas senate voted 40-0 in February to exempt body camera recordings from the state’s open-record laws, while still allowing for the police to release footage anytime at their own discretion. Likewise, the LAPD does not intend to make its camera footage public.

In DC, city officials have suggested that making videos available to the public might be too complex, too expensive, and too much of a privacy violation to undertake at all. A statement released by the DC police department said that without legislation to limit access to recordings, the costs of redacting recordings “may undermine the program.” Exempting video from public records law, it stated, would “protect the privacy rights of individuals from curiosity seekers.” Just weeks after pledging a commitment to open government and transparency, DC Mayor Muriel Bowser tried to tuck a proposal into a bill to exempt body-cam videos from requests made under the Freedom of Information Act. But the DC Council included an amendment that made Bowser’s additional 1,200 police body cameras contingent on her appropriating an estimated $1.5 million to cover the cost of FOIA requests for their footage.

The Reporters Committee for Freedom of the Press, whose requests for video in the District have so far been denied by the police department, stated in an appeal that the department’s “claimed inability to redact footage is both implausible and legally unacceptable.… The public has a right to this information and the [department] has an obligation to take steps to comply with the law.”

In early August, Mayor Bowser heeded the Reporters Committee call to allow the videos to be released to the public, reversing her prior position. According to her proposal, all interactions filmed by the police in public outdoor spaces would be available to the public.

“It’s nice to see that the mayor is backing away from a complete exemption,” Katie Townsend, litigation director for the Reporters Committee, told The Washington Post. However, as Townsend and others noted, the distinction between public and private settings is still unclear—and subject to the discretion of the city.

Meanwhile, the LAPD and LA’s mayor have refused to back down on the department’s current policy, prompting the local chapter of the ACLU to write the DOJ requesting that funding be withheld from the program, which “suffers from serious flaws.”

While civil-rights groups agree that general safeguards should blur or redact sensitive details in videos and protect privacy in sensitive situations—for example, when police attend to victims of domestic violence, interact with confidential informants, and enter domestic situations—they hope for these privacy challenges to be negotiated within existing state disclosure laws, which already provide exemptions for evidence from ongoing criminal and internal investigations.

“The idea that something is difficult so therefore no one can get access to it is not going to work,” Hanni Fakhoury, an attorney for the EFF, told The Nation. “I’m open to the time-sensitive aspect and to some of the difficulty but, to me, it shouldn’t be everything is public or ‘nothing is public because we don’t want to go to through the hassle of redacting it.’”

“We can’t just throw cameras out in the wild and hope it all works out. How long do you keep the data? Do you turn the camera on or off?” he asked. “Unless you have thought all of this out and come up with something you should not be buying these cameras.”

The police department of Bellingham, Washington, knows this firsthand. The unanticipated costs of attempting to comply with too many public records request lead the police chief to put a halt to his body-camera program entirely. Seattle, on the other hand, is attempting to deal with the state’s public records laws by going public with footage immediately using a program known as “over-redacting.” The Department uploads soundless, blurry videos—more “arthouse than Cops,” as the Guardian put it—to a police-run YouTube channel. But the program’s utility remains as unclear as its footage.

* * *

Even when policies technically require departments to release redacted video, their officers might have never captured the raw footage. In Albuquerque, where the police department was investigated by the Justice Department earlier this year, officers did not turn on their cameras before killing at least two citizens in July and April. And in Denver only one in every four use-of-force incidents were caught on camera between June and December 2014, according to a report by Denver’s Office of the Independent Monitor released this March.

These departments are not alone. A Fusion investigation of five cities using body cameras revealed that police consistently fail to use the cameras, and tamper with or withhold video evidence. Fusion attributed this non-compliance largely to the fact that officers currently control the record button, and face little to no disciplinary actions when failing to follow department policies about recording. “Good policy is not enough. It actually has to be well-enforced,” Jay Stanley, who authored the ACLU’s white paper on body cameras, told The Nation. “There should be strong consequences for officers that flout their department’s policies, but we have unfortunately seen some places where they haven’t been consequences for those officers.”

Take the case of New Orleans. An independent report assigned by the US Department of Justice found that both body cameras and dashboard cameras were not activated in 59 percent of the use of force events reported between April and June in 2014, creating “justified suspicion among citizens.” “‘Proper use’ of video cameras is a broad concept, which includes not only actually having the cameras, but also ensuring they are functional, used properly and consistently… effectively used by supervisors and investigators… and that such use is properly documented,” the Consent Decree Monitor team wrote in the report.

In Oakland, a study by an independent monitor in January, 2014, found that “officers often failed to activate their devices during interactions with subjects who were being arrested, and in incidents where force was used…many officers reported their devices to be broken and/or lost.” The independent monitor noted that there was “little – if any – auditing by supervisors” to assess proper use of cameras and compliance with rules.

If policies are ignored, cameras continually “broken and/or lost,” and their footage missing, it renders the entire reform “useless,” incoming director of grassroots advocacy at the EFF Shahid Buttar told The Nation. “The most important thing with body cameras is to make sure that the public gets the footage and the police can’t control it, hide it, or edit it,” Buttar said. He’s concerned that the way body cameras “can be selectively used” gives us “a false sense of security. It reinforces the officer discretion that the push for cameras was trying to diminish, not empower.”

Body cameras are not the first police recording technology to be subject to sabotage. Hamid Khan, a spokesperson for the civil rights coalition Stop LAPD Spying, recalled the efforts to increase police accountability after Rodney King was brutally beaten by the LAPD in the ’90s. Responding to calls for reform, the LAPD were required to wear voice recorders that automatically activated when sirens were turned on. But internal investigations told a different story about their use, revealing officers purposefully breaking the recorders’ antennas in order to disable them. “When you’re looking at new equipment,” said Khan, “you have to consider that the previous equipment they have is already being sabotaged and not used.”

* * *

By design, the body-worn camera reinforces the police’s point of view. Pinned to an officer’s chest or attached to a pair of sunglasses, the cameras provide a one-sided view of any encounter from the police perspective, leaving the officer’s behavior, facial expression, movements, and other context, out of view. “You’re not looking at the cop. You’re only seeing on camera those who are being stopped and harassed,” explained Timmy Rose, a youth organizer with the Chicago anti-police violence group We Charge Genocide.

Like the LAPD’s voice recorders, the camera’s vantage point and lack of context can be easily manipulated. The camera’s small field of view and limited angles make it easy to turn in the wrong direction, or capture chests at the expense of faces, and so forth. A reporter at Louisville, Kentucky’s Courier-Journal, who tried out the cameras wrote that he wasn’t sure how footage from a “more physical scuffle…would fare.” There are no federal guidelines currently suggesting where the camera should ideally be placed on an officer’s body.

Former Colorado Police Chief and PoliceOne columnist Joel Shults advised officers in his article “10 body camera patrol tips to keep attorneys off your back,” to never write their reports without first viewing their body camera footage. “Any contradictions will crush your case,” he warned. “Think like a defense attorney as you view it.”

Departments are already fighting to hold onto the ability of officers to review their own footage. At the end of July, the NYPD inspector general said the department’s pilot program, which is testing body cameras in six precincts, should not be expanded “until they get the policy right.” One of his chief policy recommendations is to disallow officers who are under investigation to view any of the footage they’ve recorded. NYPD Police Commissioner William J. Bratton compared the recommendation to playing a game of “gotcha,” stating that he would not support it “under any circumstance.” At the start of September, Bratton said it was likely that the NYPD’s body camera footage would never be made public.

* * *

Beyond the precinct, there are currently few rules guiding how the collected footage should be used in court. Buttar said he anticipates the cameras’ indiscriminate range of footage to lead to more arrests and prosecutions for activities as “innocuous as crossing the street.” The camera’s perspective could even provide police with broader surveillance powers than they already have, allowing them to retrospectively zoom into anything captured by their field of vision, without having a constitutional cause to search. Many civil liberties groups, including the EFF and ACLU, have voiced concerns that body-camera footage will be integrated with other surveillance tools, like facial-recognition technologies, to expand the state’s discriminatory monitoring of communities of color. “Giving body cameras to cops is giving them one more tool to criminalize black and brown youth more,” WCG organizer Timmy Rose said.

Danah Boyd and Alex Rosenblat suggested in The Atlantic that prosecutors may use the threat of camera footage to augment the practice of asking suspects to agree to plea bargains for crimes they didn’t commit. “What happens,” they asked, “when [suspects] are threatened with video footage or facing video footage that may be cropped, presented out of context, or otherwise manipulated to make them look more culpable than they really are?”

Police have hinted at one answer. In a 2013 Guardian profile of the technology’s impact in Rialto, California, a reporter describes an officer uploading a body-camera video of one interaction to his phone and saying, “Somewhere down the line something could happen and what that guy said, his demeanor, could be evidence.”

Police and attorneys have suggested that body-worn cameras are at once objective while also overwhelmingly favoring their version of events. NYPD commissioner Bratton, who’s called cameras “the next wave of policing” told The New York Times in 2013 that the “camera offers an objective perspective.” “Officers not familiar with the technology may see it as something harmful,” he continued. “But the irony is, officers actually tend to benefit.” Michael Rains, the attorney who defended the officer who shot Oscar Grant in the back in an Oakland BART Station in 2009, echoed Bratton’s sentiment. “Representing police officers for a living, we see these cameras—when they’re looked at and the evidence is looked at objectively—being beneficial to the officers in analyzing their use of force, not detrimental,” Rains told the Huffington Post.

After all, even when damning video of police brutality and killings has been publicly available in the past, it has rarely led to the prosecution of those officers. Eric Garner’s death was captured on camera and widely circulated, but his murderers walked free. Police officers have also recently been acquitted or not indicted for killings in Ohio, Oklahoma, Chicago, and Orange County—all of which were caught on camera.

Anti-brutality activists warn that catching cops on camera is pointless if our legal system refuses to indict them. “Even if body cameras are implemented perfectly and [the footage goes] straight to the web,” Buttar said, “they still don’t ensure accountability, which they have been pitched as a proxy for.”

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