Body cameras have major potential to increase police accountability. However, without informed policies governing their use, they might not only fail in this goal, they could actually increase street-level surveillance and the targeting of minorities. Cameras may be intended to better review police conduct but these cameras aren’t pointed at officers — they’re recording the community around them. Unfortunately, so far, federal funding is pushing local police departments in the wrong direction. This is a problem we can fix, but the government will need to dramatically change course. Not only must it stop rewarding departments with bad policies, it needs to establish specific rules that protect civil rights and civil liberties as a condition to receive body camera funding.
Earlier this year, the Justice Department announced that it would provide funds for local and tribal law enforcement agencies to purchase body cameras, and condition grants on development of effective policies governing how the cameras are used. That makes sense. Many communities across the country are conflicted about body cameras, which have strong potential for improving accountability, but also carry the potential to become powerful surveillance tools that catalog the location and activities of citizens en masse. But a new study released this month suggests that DOJ is failing in its efforts; contrary to its commitment, the government handed out the biggest awards to cities with some of the worst body camera policies.
The study, the Police Body Worn Cameras Policy Scorecard, evaluates how more than two dozen police departments’ body camera policies stack up against eight criteria derived from a set of Civil Rights Principles for Body Worn Cameras. These criteria address a range of issues that include the privacy of individuals filmed, police retention and use of footage, public access and transparency, and limits on use of body cameras in combination with biometric data. The principles were released in May by the Leadership Conference for Civil and Human Rights with the backing of 34 civil society organizations, including the ACLU, the NAACP, La Raza, and New America’s Open Technology Institute. They are, at least in theory, closely aligned with the DOJ grant announcement for body camera funding, which states that awards would be conditioned on adoption of good policies on technology usage, evidence acquisition, data storage and retention, privacy issues, accountability, and transparency and accessibility.
But the scorecard shows just how out of sync DOJ’s funding is with critical civil liberties goals. The six departments that received the maximum body camera grant of $1 million (Chicago, Detroit, Los Angeles, Miami, San Antonio, and Washington, DC) all received failing grades on their policies. Of these departments, the one with the most positive marks, Chicago, addresses just three of the eight critical issues; two, Detroit and San Antonio, address none. All of these departments also received negative scores — meaning they ignored or developed policies that ran directly counter to the Civil Rights Principles — for many of the issues. All six cities received more negative than positive ratings on these critical issues.
Without effective policies, body cameras could become tools for pervasive surveillance rather than accountability. Absent appropriate controls on police access and use, departments could continuously scan their own video. Further, they might establish information sharing agreements with other localities or federal agencies to build mass databases. Perhaps most troublingly, the footage could be used in combination with facial recognition technology to track and catalog individuals’ activities, including those protected by the First Amendment like attending protests and exercising religious freedom. Without proper rules, body cameras — a tool meant to check government power — could be used to collect a significant amount of information about our public movements and activities.
Given how abysmally many DOJ-funded departments’ policies fare against the scorecard’s civil rights and civil liberties-derived criteria, it is clear that the federal government needs to change course. As the holder of the purse strings, DOJ has an enormous opportunity to encourage positive body camera practices, and right now it isn’t seizing that opportunity. Even worse, localities that are still developing their camera policies (or that are seeking to obtain similar grants) may look to the cities that have received large awards as models for developing effective policies, even if those departments actually failed to address important civil liberties and accountability issues.
The best way to shift body camera funding in the right direction is to offer specific policies that are required to receive federal grants. This will provide guidance to departments that want to set out proper policies, and will stop funds from being used to expand programs that use body cameras for surveillance rather than accountability. A few good areas to provide this specificity are:
- Support General Recording: Department policies should generally require officer recording whenever interacting with the public and limit discretionary use, with appropriate exceptions such as upon request of a crime victim or witness. Evidence suggests that providing broad discretion for when cameras must be turned on causes a substantial decrease in recording and could lead to abuse. Permitting appropriate exceptions to this rule will ensure that officers are not impaired in performing essential activities by the “chilling” effect that a camera might provoke in sensitive situations, such as when talking to a confidential informant.
- Establish Controls for Access and Use: Department policies should clearly prohibit any tampering with video, require strict limits on access, and have auditing practices to enforce these rules. Absent limits on access, departments could scan body footage of neighborhoods in a manner that disproportionately impacts minorities, or use video to dramatically escalate prosecution of minor crimes in pursuit of a Broken Windows policy. Unlimited access also creates the risk of different departments sharing their video with each other and the federal government, without any clear standards or restrictions in place.
- Require Proper Disclosure to Affected Individuals: Departments should have disclosure policies that permit individuals to view all footage of incidents that involve that individual. Two of the goals of police body cameras are to empower individuals to pursue complaints and to shine a light on improper activities. Without policies permitting affected individuals to access and use footage, departments effectively remove the ability to use body cameras as a means of enhancing accountability. If body cameras are not serving this basic purpose, what effect are they actually having?
- Prohibit Pre-Report Review: Department policies should prohibit review of body camera footage before an officer has written an initial report of an incident to discourage overly aggressive use of force or searches in conjunction with body cameras. Without such a policy, body cameras could encourage officers to search footage for justifications after the incident, opening the door to a “search first, find reasonable suspicion later” approach. With a rule prohibiting pre-report review, officers could provide an initial report in the same manner they do now, then review footage to add extra details in a secondary report.
- Prohibit Use in Combination With Biometrics: Department policies should prohibit use of body cameras in combination with biometric tools (such as facial recognition software) to create or scan for biometric identifiers, absent court approval based upon a probable cause standard. The potential abuses in unconstrained use of body cameras in combination with facial recognition are astounding. For example, if these technologies are combined, face prints could be logged for every person that attends a political demonstration or religious gathering. Existing facial profiles could be sent to thousands of cameras that then ping any matches back to a police database, facilitating location tracking without court oversight or approval. When combined with biometrics, body cameras could suck up more sensitive data than controversial stingrays devices. But despite its importance, only one of the 25 departments evaluated in the Scorecard (Baltimore) had a positive policy on biometrics.
Making these measures baseline requirements for receiving federal funding would be a major improvement, and would still leave space to develop particular methods and bright line rules in the future based on continued evaluations and evolving body camera best practices. If the DOJ fails to change its grant rules, Congress should step in and require that funding be conditioned on the aforementioned responsible policies.
Implementation of police body cameras is moving incredibly quickly throughout the country. It’s critical that development of effective policies for their use move just as quickly. If we fail to act, we may be locked in a system where body cameras simply augment the problems of a broken criminal justice system and strengthen the surveillance state, rather than realizing their full potential to improve police-community relations, reduce police costs, and ultimately, reduce violence and save lives.
All opinions expressed in this post are the author’s and do not represent those of his employer.