THE POLICE STATE
The week of December 7, 2014

To fix police injustices, it’s not as simple as pressing play

By S.E. Smith

Responding to the grand jury decision in Ferguson, Mo., Michael Brown’s family members put out a statement that included a call to action: “We need to work together to fix the system that allowed this to happen. Join with us in our campaign to ensure that every police officer working the streets in this country wears a body camera.”

In doing so, they joined the growing chorus of people and organizations in the United States calling for all members of law enforcement to wear body-mounted cameras for accountability, most notably President Obama, who recently rolled out a multimillion dollar plan to outfit and train local police departments with cop cams.

But if there’s one thing to learn from the horrific events surrounding the death of Eric Garner, a black man who died at the hands of police officers in July, it’s that the deployment of body-mounted cameras or “cop cams” might not be enough.

Earlier this week, a New York grand jury declined to indict officer Daniel Pantaleo in Garner’s death, despite the existence of a street video that clearly illustrates the sequence of events that led to his tragic demise. As protests ripple across New York, some are now beginning to question the value of body cameras as a tool for protecting members of the public from police violence.

In fact, a close examination of cop cams reveals a number of potential flaws that must be addressed before adopting them, including security concerns, the potential for manipulated footage, privacy issues, and worries about whether evidence from cams would even make it into court. In the course of advocating for police reform in the U.S., we must not be so hasty to overstep individual liberties or the legal system, which is slow to change for a reason. The legal system, laid out in the Constitution, case law, and acts of legislation, is designed to protect the legal rights of Americans.

Ironically, as a tool for preventing profiling and harassment, body cameras might end up doing the exact opposite, if officers have access to extended surveillance tools.

Here’s what we do know about body cameras: They reduce complaints against officers and use of force significantly. In Rialto, Calif., complaints dropped 88 percent and use of force declined by 60 percent once police officers started wearing cameras. The argument that cops on candid camera would behave more circumspectly seemed overwhelmingly solid until Wednesday, when the public realized that even when video is available, police aren’t always held accountable for their actions.

When looking at hard statistics about a radical drop in officer-involved complaints and excessive use of force, it may be tempting to assume that cop cams will solve the problem of police violence, especially in a nation wounded and struggling for answers in the wake of the deaths of multiple unarmed black youth in a single year. But members of the public, including President Obama, may be missing an important part of the story: While cop cams have been successful, they come with some hidden flaws, as well.

One of the most obvious concerns with cop cameras is something built right into their functionality: They can be turned on and off. This is ostensibly designed to prevent endless footage that officers and personnel have to troll through in order to provide relevant material; no one wants to see officers driving around in their cruiser. Or do they?

Revelatory information about how police officers are behaving may be embedded in activities that are not recorded, such as the decision to pull over and stop a young black man in the street. While the officer might turn on a camera after getting out of the car, that doesn’t necessarily provide context about the situation, including, critically, why the police decided to pull over or ask a subject to stop to begin with. While in some cases this may be obvious—a missing tail light, speeding, an illegal transaction on the street—in others, it may be more nebulous. Because police cameras cannot document the motives behind choosing to interact with a suspect, or the subconscious racial bias of the police officer, they cannot offer hard documentary evidence for or against racial profiling, a significant concern with police departments across the U.S. While video could be analyzed over time to develop a statistical breakdown of racial trends, individual video in a specific case could not prove that a suspect was targeted on racial grounds.

Sean Bonner, a tech commentator, hackerspace founder, and activist, makes an important point about the potential for what might be politely called “failures” of cop cams—those incidents when they don’t work at crucial moments. “[M]ysteriously the recorders stopped working,” he wrote of a vocal recorder program initiated in Los Angeles after the Rodney King beating, “and this kept happening until the department was forced to admit that their internal investigations showed that officers were purposefully breaking off the antennas on their recorders to disable them.”

Are police departments equipped to handle thousands of hours of video, even if it’s automatically deleted after 30 or 60 days unless it’s been flagged as evidence?

In a relatively recent case, a police officer turned her camera off at a crucial moment of an encounter. Logs showed that it was no accident, and she was disciplined, but the ability to suppress evidence by deactivating a camera is a significant problem. In other cases, evidence suggests that video evidence has been tampered with after the fact; this is one reason to automatically upload camera data the instant it’s taken, rather than waiting for officers to turn it in.

The question of who can view the footage is also a pressing one in a landscape where many civilians are concerned about police abuse and want to be able to see video of their own arrests and other interactions with police. Such material should, some argue, be part of the public record, but it could also be considered evidence in an ongoing investigation, in which case police departments may withhold it. If members of the public are not provided with access to such videos, it can be difficult to use them in their defense.

Police officers, meanwhile, want to be able to view videos, often as part of their plans to review notes and other materials before they testify in court. Such overviews can help police ensure that their testimony is accurate and complete, at least in theory. However, they could also create openings for potential bias and selective wording in court; going over such material could become a method of coaching police for testimony, not just preparing.

Furthermore, there are some significant privacy considerations to take into account when implementing body cameras. As Trevor Timm at the Guardian puts it, body cams can turn our lives into a “peep show,” with videos of police violence rapidly making their way to the Internet or television, as they do already. That’s an even more significant problem in states with lenient public records request laws where police videos are turned over to members of the public. In Washington, this is already happening; an anonymous activist is demanding “any and all” footage and then posting it online. Striking the balance between defending privacy and protecting the right to know is a tricky feat, it turns out.

While courts have ruled that video surveillance (including what police can see “with the naked eye”) does not constitute a violation of privacy, it becomes more complex with videos that are automatically downloaded to a server where potentially anyone in a department, and possibly other agencies, could view them. Police may record people at vulnerable moments, capturing events people would rather keep private, and the release of such data could make people deeply uncomfortable in addition to compromising privacy.

Police may record people at vulnerable moments, capturing events people would rather keep private.

“Recording interviews with victims of sexual assault or domestic violence are particularly sensitive. Privacy concerns also arise when children are being filmed, or when citizens request that officers turn off the cameras,” writes Amanda Sakuma for MSNBC. Matt Pierce at the Los Angeles Times echoes these issues: “Video from dashboard cameras in police cars, a more widely used technology, has long been exploited for entertainment purposes. … Officers wearing body cameras could extend that public eye into living rooms or bedrooms, should a call require them to enter a private home.”

Given data security issues, there are also some key questions to ask about the handling of recorded video data. Where are videos stored? Data in the cloud, as we discovered with the leaks of celebrity nudes earlier this year in what was termed Celebgate, is highly unsafe, and storage of police videos in the cloud could result in the exposure of hours or video, as well as the risk of video tampering or destruction. If stored locally, is access to a server restricted to authorized personnel only, and how is this enforced? Are police departments equipped to handle thousands of hours of video, even if it’s automatically deleted after 30 or 60 days unless it’s been flagged as evidence?

These concerns are legitimate, as surveillance systems have been hacked before. Who can actually pull up data, and what kinds of permissions and limitations are in place? These aren’t just issues within police departments and sister agencies; for example, the Department of Justice may enter a police department to investigate a civil rights complaint and request access. Could a District Attorney access data freely? What about other public officials?

There’s also the larger issue of who else might get access. Beyond people actually directly involved in a law enforcement encounter, including bystanders, suspects, and victims, can attorneys on either side of a case access them? Do they need to file subpoenas to do so, or can they simply request an opportunity to view the evidence? How do police recordings figure into the legal discovery process that takes place before trial? Should such videos be shown to the jury, and if so, should they be edited? If they are edited for length or other factors, would this be considered prejudicial? Will juries even take them seriously, given their tepid response to the video in the Garner case?

If there’s one thing to learn from the horrific events surrounding the death of Eric Garner, it’s that the deployment of body-mounted cameras or “cop cams” might not be enough.

At Think Progress, Lauren C. Williams also discusses the implications for an expansion of surveillance culture in the U.S., already a growing concern for many privacy activists, like the Electronic Frontier Foundation, which advocates on privacy issues: “Police’s ability to survey someone is limited to their eyesight. But wearable cameras enhance that ability, making it easier for law enforcement [to] zoom in on what a person is doing on their phone while standing on street corner.” Added to tools like facial recognition and database integration, body cameras could be turned into tools that might criminalize people going about their daily business. Ironically, as a tool for preventing profiling and harassment, body cameras might end up doing the exact opposite, if officers have access to extended surveillance tools.

This by no means suggests that cop cams are fundamentally flawed and shouldn’t be implemented. They’re supported by the Justice Department, numerous police departments, public officials, and members of the public. What it does illustrate is that before cop cams can become commonplace in police departments across the U.S., these issues must be addressed, and we need national recommendations for standards and practices in place. We need to ensure that they can’t be tampered with, that the subsequent video is stored correctly, that officers are sensitive to potentially charged or emotional situations, and that video is used responsibly in courts. Videos will never be, and shouldn’t be, viewed as the sole evidence for conviction or dismissal. Instead, they’re a piece of the larger evidentiary puzzle, something that will simultaneously hold officers accountable while creating supporting material for cases that go to trial.

Police reform in the United States is a complicated issue, as we were reminded in President Obama’s speech to the nation on Wednesday, when he said: “This is an American problem. When anybody in this country is not being treated equally under the law, that’s a problem.” Changing the way police interact with the public will involve addressing racial divides, confronting the militarization of police, and implementing reforms to police training.

Body cams, ultimately, are only one piece of the picture—not a silver bullet.

Photos via Wikimedia Commons | Remix by Max Fleishman