Body Cameras: Useful—if You Can Get at Them

By Zosha Millman | LXBN | July 13, 2016

North Carolina’s legislature hasn’t been making many people’s good list. Their latest police body camera law won’t help.

Under the new law signed by Gov. Pat McCrory on Monday, recordings from law enforcement dash cams and body cameras will not be considered public records. Coming off of last week’s outrage towards police violence (which owes a lot to the cell phone footage that went viral) the law is striking a particularly sour note amongst its critics. But this latest law is just the tip of the iceberg when it comes to implementing body cameras.

North Carolina’s murky move

Under the new law, video taken from dashboard and body cameras cannot be kept confidential as part of an officer’s personnel file (a practice that has been used to keep these cameras underwraps elsewhere). But the state also now joins five other states that exempt the videos from public records requests. Instead, people (or representatives of these people) who appear in a video can ask to view a recording. They cannot receive or make a copy, and a law enforcement agency could deny a request to protect a person’s safety if it’s part of an on-going investigation. Supporters say this is all in the business of protecting privacy and increasing public safety.

“If you hold a piece of film for a long period of time, you completely lose the trust of individuals,” said McCrory. “[But] we’ve learned if you immediately release a video, sometimes it distorts the entire picture, which is extremely unfair to our law enforcement officials.”

There are avenues if a request is denied; a judge could become involved, who would consider whether there’s compelling “public interest” in releasing the video. But critics say it’s an undue burden on an already stressful process.

“Body cameras should be a tool to make law enforcement more transparent and accountable to the communities they serve, but this shameful law will make it nearly impossible to achieve those goals,” said Susanna Birdsong, policy counsel for North Carolina’s ACLU chapter. “People who are filmed by police body cameras should not have to spend time and money to go to court in order to see that footage. These barriers are significant and we expect them to drastically reduce any potential this technology had to make law enforcement more accountable to community members.”

Community policing

The truth is, what to do with footage from police body cameras is poised to become a major issue. Though 29 states and D.C. have laws addressing police recordings, there’s no agreement on just how long to hold them. As CommLawBlog’s Kevin Goldberg testified on over a year ago, even retention of the videos can be widely variable:

Photo Credit: JobsForFelonsHub cc

Our research shows that one-third to one-half of states considering BWC legislation have identified a specific time for retention of videos before they can be erased. These range from a minimum of seven days (Tennessee) to a maximum of 3 years (Kansas and Michigan). There is no single “right answer” in terms of the time that must pass before a recording can be erased. There simply must be enough time to allow for affected individuals and the public to learn about a potential incident and make their claims for access known.

…this is perhaps one of the biggest individual transparency and accountability issues that will face the District and other city and state governments around the country.

Perhaps the other side of the coin, as Goldberg notes later, is Seattle’s pilot program with its body cameras, where the department committed to putting video collected on their Youtube channel. It’d be partially redacted (faces blurred, and stripped of audio), but it’d be constantly accessible. Unfortunately, in practice, videos are edited so heavily it’s hard to tell if they’ve crossed the line.

…If you can get them

Which leaves people searching for a better compromise, one that protects privacy while not making the police the lynch pin in maintaining videos. After all, even last week’s Alton Sterling video was almost lost after both officers body cameras reportedly fell off during the incident and didn’t capture any footage. As Scott Key has written on his Georgia Criminal Appellate Law Blog, it’s something that happens more often than you’d think:

Law enforcement already have the ability to record any conversation that takes place with a suspect or witness. Anybody with a phone, particularly a smart phone, has the ability to record a conversation practically any time. And many police cars are equipped with a camera that a police officer can manually initiate or which can initiate within seconds of the activation of emergency lights. Most police cars come equipped with a video camera to record interactions with the public after a traffic stop. The backseat of most police cars has recording equipment, and most police officers are equipped with the body might to record any interaction with the public.

And yet, I still encounter situations where law enforcement did not, for one reason or another, record what is reported to be an incriminating interrogation or, in the traffic stop situation, egregious driving behavior. In those situations, the police officer explains that he found himself somehow without the ability to record an event. Or the camera was out for repair. And when the recording equipment was not working so well, law enforcement agents report that my clients really began to incriminate themselves. It strains credulity to believe that there are so many mishaps with recording equipment in criminal investigations. But there it is.

Additionally in the case of Sterling, the owner of the convenience store where Sterling was killed claimed that after the incident officers took the surveillance video and confiscated his cell phone. That sort of intimidating behavior is fairly par for the course in a country where police and courts regularly question a person’s right to record officers at work. It’s also the kind of behavior that makes people’s trust in a reliable and mandated body camera so important.

But while navigating trust is a major factor in body camera discussions it’s not the only one. Departments who are debating and beginning to use body cameras have plenty of financial concerns to implement, as Meena Harris writes for Inside Privacy:

• Workability.  Adding new equipment could be overly burdensome and restrict officers’ ability to perform their duties if cameras are cumbersome or difficult to operate.  In departments where other new technologies already have been introduced in recent years, learning to operate even more new devices may feel overwhelming and confusing.
• Cost.  Buying and implementing body-worn cameras is expensive.  Along with the purchase cost, funding and staffing resources must be used for storing, managing, and disclosing video data, in addition to officer-training and program administration.

Those numbers are not low: In Seattle those numbers may run as high as $12 million. Chicago is seeking a tax hike to help fund police oversight, amongst other solutions. And just last year Dallas, the site of a deadly attack on police officers last week, received $3.7 million to help fund 1,000 body cameras over five years.

As we’ve written before, when they’re in use body cameras can be an extremely effective, if imperfect, solution, for both the police and the policed. The question is, will there ever be a middle ground that enables that success?

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