Body Cams, Policy And The Public’s “Right” To Know

At HuffPo, Nick Wing raises questions arising from police department policies on the disclosure of body cam footage.  Remember when some cops resisted the idea of wearing body cams? What about their privacy? What about the cost?

What about the privacy of people they dealt with during a shift who fell far short of newsworthy, who weren’t having their best day, who didn’t deserve to be subject to public exposure, ridicule perhaps, for having the misfortune of crossing paths with a cop?

What about the public’s right to know?

As the public searches for answers about what happened on that afternoon in March, a new set of concerns has emerged about police officers’ use of body cameras — and how, or if, the devices will promote accountability and transparency if the policies that govern the footage are overly restrictive.

Two of the officers involved in Keunang’s killing were equipped with body cameras that were recording during the episode. Although investigators have that footage in their possession, the LAPD has not publicly released it. Under recently adopted policy, the department likely won’t release the videos unless it’s compelled to do so in a criminal or civil court proceeding.

Having been an early adopter of the critical utility of cameras, with the similarly critical caveat that they will never be a panacea, and could also be a weapon in the manipulation of information, the issue raised by police policies as to the release of video introduces another significant wrinkle.

Critics say the LAPD’s body camera policy is problematic because it allows the department to withhold its footage from the public, it requires officers to review footage before they write police reports, it doesn’t lay out clear punishment for officers who fail to turn on their cameras during critical incidents, and it doesn’t provide clear privacy protections to limit public surveillance.

This is a troubling list of complaints. But at their core is an essential problem: Giving police the power to block the release of body camera footage deprives the public of an opportunity to better formulate an opinion about police tactics and to push back with facts, should community members find an officer’s actions to be inappropriate. In many places, bad body camera policy is threatening to undercut public demands for accountability and transparency before programs even get off the ground.

This mash-up of issues tends to confuse the problem. Allowing police officers to see video before writing up reports or being questioned allows them to tailor their statements to what the video shows.  This is a terrible problem, but of a wholly different nature than the public “accountability and transparency” question.

There are, sorry to say, sound arguments favoring the policy of not disclosing all body cam video.  Aside from much of it being monumentally boring, and revealing nothing of public interest, it’s hugely expensive to maintain a library of all video, to handle this morass of data, very little of which is worth keeping. Yet, one never knows when video of something that appears entirely insignificant at one time proves to be critically important at another.

Much as one can dismiss cost in light of headier concerns of “justice,” mostly recognized only in retrospect, this is money that comes from taxpayer’s pockets, and can’t be used for other things, education for example, that are also worthy. Scarce resources, bro. They have to be allocated.

While the police concerns for privacy of the public come off as disingenuous, as most surmise that cops couldn’t care less about anyone but themselves or they wouldn’t go around shooting people quite so quickly, that doesn’t mean the concern isn’t valid. Be that guy in his skivvies caught mistakenly on cop-cam, and broadcast on Youtube for your friends’ and neighbors’ lulz, and see how you feel about privacy.

And then there is the base question of the public’s right to know. Is that a right? Sure, these are public servants, men and women who get a government paycheck and so work on our dime.  Why do they get to claim secrecy from the people who fund their vested pensions?

People are already being left out of this most basic decision-making process, says Nadia Kayyali, an activist for the Electronic Frontier Foundation, a nonprofit that focuses on digital rights and technology.

“Where body cams are being adopted, it’s really important that community members — particularly those who come from the communities that are most affected by police accountability issues — need to be involved in that decision. They need to have a discussion,” Kayyali said. “And what we’re already seeing is that instead, law enforcement agencies are applying for this money without that discussion.”

This contention appears to reflect a serious ignorance of a republican form of governance.  The public doesn’t shell out money directly to Officer Friendly, but to a general fund that’s allocated by people we elect to office, who hire other people to run agencies. Like police departments. They aren’t required to ask the permission of every taxpayer before deciding how to do their job.

Then again, there are the ordinary, daily, petty issues and there are huge, overarching, very expensive, issues.  It would not be unreasonable to argue that body cams are a big issue that shouldn’t be left to a government functionary to decide.  But does that mean it should be subject to public referendum?

And then there are concerns about how our every move is now caught on someone’s camera, the issue of public surveillance. Body cams significantly add to this body of public surveillance, particularly in light of license plate and facial capture.

Activists and police officials regularly tout the acquisition of body cameras as a key step toward reform, but many people are still skeptical, believing the devices could fail to prompt meaningful change and even make certain issues worse.

“There is concern that body cameras can be misused, are going to provide more ammunition in court for prosecution, rather than accountability for law enforcement themselves,” said Kayyali. “There is concern that they are really creating pervasive surveillance.”

Ironically, the concern for the public’s right to know, for accountability and transparency, exacerbates the problems with pervasive surveillance, which is a violation of individual privacy.  It’s not that each concern isn’t valid, but that it will prove impossible to accommodate every legitimate concern.  Conflicts happen, and we’re usually left to hash them out in the context of particular scenarios which favor one over another. Change the scenario and the relative importance of the concern changes with it.

Which concerns should prevail as a matter of public policy, and who makes the decision, raise a great many problems.  The point is that decisions about these difficult questions can’t be thoughtfully made in the absence of consideration of all the relevant arguments. And then there is the law of unintended consequences, which will bite us in the butt no matter what choice is made. No, this isn’t easy. Not at all.

 

9 thoughts on “Body Cams, Policy And The Public’s “Right” To Know

  1. Tim Cushing

    “There is concern that body cameras can be misused, are going to provide more ammunition in court for prosecution, rather than accountability for law enforcement themselves…”

    Well, that’s just stupid. I like the EFF and tend to support its work, but this “activist’s” statement suggests Wing should have reached out to someone else for comment.

    Of course it will be used to help prosecute members of the public. The goal is to make sure it doesn’t become JUST a tool for prosecutors to chase non-police “bad guys.” But it will be used both ways. That’s actually the ideal situation.

    1. SHG Post author

      I like the EFF in general as well. I like a lot of what the ACLU does too. I like FIRE more than ICE. But I’m always cautious about the statements of “activists” and “advocates” whose views tend to be myopic. Cameras have proven to help cops at times, defendants at times, and no one at times. But activists have positions to promote, and sophisticated views don’t always serve that purpose.

      1. RollieB

        “…activists have positions to promote, and sophisticated views don’t always serve that purpose.” Thank God we have YOU to determine which views are sophisticated and which aren’t. (reddit here I come…)

        1. SHG Post author

          Nobody makes you read me, Rollie. And nobody says you have to agree with anything I write. It’s a free country. And reddit is down the hall to the left.

          1. RollieB

            I wouldn’t miss my morning SJ read, it’s almost as good as coffee for getting the heart pumping. And, I agree with you most of the time, at least partially. Perhaps I’ll just let you pontificate while I sit back and yell at the wall, rather than comment – I’ll be better for my ego. 2nd or 3rd door on the left?

            1. SHG Post author

              And, I agree with you most of the time, at least partially.

              You have no idea how important your (partial) validation is to me. I will now die happy.

  2. David M.

    I find the surveillance argument as unpersuasive now as I did when Elie made it in a comment a few months ago. Whether or not they have cameras, the cops will be watching as we and they go about our business. It’s what they do.

    If a bunch of government flunkies were to get the job of reviewing each camera-equipped officer’s video output, looking for potentially illegal conduct the cops missed first time around, we might have a problem. But as you point out, this sort of thing costs.

    And this is a hypothetical. What’s demonstrably true, right now, is that cams make it harder for cops to get away with false positives.

    1. SHG Post author

      The greatest weapon we have (at least for now) against the government’s accumulation of data is they have more than they can deal with. Same is true for video.

  3. Jim Tyre

    Scott,

    Generally, I agree with your post. But I want to take issue with a few things you say as applied to EFF. (As you know, but for your readers who may not, I am an EFF Special Counsel.)

    Immediately after the quote from Nadia Kayyali of EFF, you say that “This contention appears to reflect a serious ignorance of a republican form of governance.” But that ignores that in California (where EFF is based) and in many other states, the public referendum process is alive and well. The California Constitution is littered with amendments (some on far more trivial matters) that resulted from the public referendum process rather than the actions of the State Legislature.

    Properly, you point out that there are privacy interests at stake, not just public accountability interests. But suggesting that EFF does not give weight to those privacy interests is misplaced. The HuffPo piece you link to links to a statement of principles signed by EFF and others. One of those principles is:

    4. Make footage available to promote accountability with appropriate privacy safeguards in place. At a minimum: (1) footage that captures police use of force should be made available to the public and press upon request, and (2) upon request, footage should be made available in a timely manner to any filmed subject seeking to file a complaint, to criminal defendants, and to the next-of-kin of anyone whose death is related to the events captured on video. Departments must consider individual privacy concerns before making footage available to broad audiences.

    Whether the wording of that particular principle, or any others, can be criticized is always a valid discussion. But EFF clearly does consider privacy in this context as well as public accountability.

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