#blacklivesrecorded: Will the Darling Savior of Police Brutality Be the Downfall of Modern Privacy?

• Publication year: 2016
• Author: By Elizabeth Atkins

#BlackLivesRecorded: WILL THE DARLING SAVIOR OF POLICE BRUTALITY BE THE DOWNFALL OF MODERN PRIVACY?

By Elizabeth Atkins^*

Introduction

Angry and confused, three women created #BlackLivesMatter after George Zimmerman was acquitted for shooting and killing Treyvon Martin.¹ Later, the movement grew as citizens recorded, and shared, incidents of police brutality against minorities, gaining the nation's attention. It is obvious America still suffers deeply from racial tensions, and sadly, an African-American or black person is eight times more likely to die at the hands of an officer than a white person.² Racism is still entrenched in the alleged post-racial society we live in today and institutionalized in nearly every facet of daily life.

As a response to the unjustified killing of often unarmed and innocent citizens by police, and the escalating pattern of police militarization and brutality, #BlackLivesMatter and other racially based social movements demanded massive changes in the way police interact with African-Americans and black citizens. One such suggestion has been the encouragement of police work body cameras. Police officers wear body cameras as a part of their normal uniform. Promoters of body cameras state their use will lead to greater transparency, more accountability, and improve interactions with the public.³ A police officer that knows his actions are being recorded and subjected to later scrutiny is more likely to act within the bounds of the law, so the argument goes.

However, there are massive and understated privacy concerns when agents of the government are recording its citizens at all times and unchecked. Will the recording of primarily low-income and minority neighborhoods disproportionately affect the privacy of minorities? What about victims' rights? Should the police be recording our movements in the public sphere 24/7? Should the police be recording inside of our homes? The unabridged use of police worn body cameras leads to these questions and more. A path needs to be carved balancing the interest of decreasing police brutality while at the same time protecting citizens, especially minorities, from constant government surveillance.

Part I details the emergence of the social movement calling for more police worn body cameras. Part II specifies the emergence of police worn body camera and the lack of regulation, leading to privacy concerns. Part III argues the prevalent and unchecked use of body cameras and recon flights will massively invade privacy rights of all citizens, but particularly minorities. The Article concludes that because important privacy rights are implicated by the use of specific police surveillance such as body cameras and surveillance flights, narrow regulations should be put into place to protect citizens.

I. A Social Movement Creates the Perceived Need for Body Cameras

#BlackLivesMatter was created in 2013 as a hashtag on Twitter shortly after Zimmerman's acquittal to express frustration and disappointment with the decision.⁴ The underlying message is brilliant in its simplicity: the image of an idealistic post-racial America is false—black lives do not matter right now, but they should.

#BlackLivesMatter caught fire in 2014 when two black men died at the hands of police within a month of each other, and a third eight months later. Eric Garner, Michael Brown, and Freddie Grey (among others) have become household names synonymous with police brutality toward black lives.

The first was Eric Garner, who died on July 17, 2014, and the second was Michael Brown, who was killed on August 9. Fueling media coverage of Eric Garner's death was a cell phone video showing a New York police officer putting the forty-four year-old man in a chokehold, a move that was specifically prohibited by the New York Police Department.⁵ The autopsy found that the officer's chokehold caused Mr. Garner's death due to compression of his chest during the arrest.⁶ His last words gasped before he died were, "I can't breathe."⁷ The news of the New York City grand jury declining to indict the officer responsible sparked protests in several cities.⁸

In the midst of the outrage surrounding Mr. Garner's death, Michael Brown, an African-American eighteen year-old, was shot and killed by a white police officer on August 9, 2014.⁹ This shooting occurred in Ferguson, Missouri, a town with deep racial tension.¹⁰ Outrage grew when it became known that the officer fired twelve rounds at the unarmed teenager.¹¹ Protests sprung around the city as unrest increased, resulting in cars being vandalized and businesses being looted.¹² A dichotomy exacerbated the culture clash between police and protesters when police stormed the street in riot gear.¹³ As media coverage of Ferguson increased, protestors began using #BlackLivesMatter on protest banners and chanting it during marches.¹⁴ A week before the New York City grand jury declined to indict the officer involved in Mr. Garner's death, the grand jury in Missouri declined to indict officer Darren Wilson in the murder of Mr. Brown, sparking massive protests.¹⁵

Eight months later, in Baltimore, the death of twenty-five year-old Freddie Grey continued the outrage of #BlackLivesMatter.¹⁶ Notably, it was recently revealed that the FBI used low-flying planes to capture video and take surveillance of the protestors in Baltimore, Ferguson, and Missouri.¹⁷ These planes captured high-resolution footage of the protests over police brutality.¹⁸

In all, these events have entered the national consciousness and assumed full-fledged "social movement" status. People talk about race and policing. The media reports on race and police practices. And inextricably linked to the intensified national discussion surrounding race and policing are questions of what to do about the now widely recognized problem. One proposed solution, the use of police worn body cameras, has emerged as a possible pathway to more effective policing. The remainder of this Article discusses the increasing use of police worn body cameras, and the justifications accompanying their use, as well as the significant privacy and public policy concerns raised by the ever-increasing use of such cameras.

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II. The Emergence And (Lack of) Regulation of Police Worn Body Cameras

The harrowing events discussed above and the corresponding national awareness, outcry, and social movements have in large part propelled the police worn body camera movement. The body camera movement, moreover, has spread rapidly and with great intensity. President Obama pushed to equip police departments with body cameras by providing $75 million to departments to purchase equipment.¹⁹ National organizations and components of the federal government have also conducted research into the use and benefits of police worn body cameras, with many studies aiming to "provide [] comprehensive resource[s] that will help law enforcement agencies to understand the factors they should consider to make informed decisions regarding the adoption of body-worn camera technology."²⁰ In other words, police worn body cameras are, to say the least, a topic of national conversation, both among policymakers and also those engaged in academic research on whether and on what terms law enforcement ought to employ such tools on a national scale.

This section will touch on the benefits of equipping officers with body cameras and the lack of unified regulations surrounding the practical use of body camera footage. Until these questions are answered, and regulations are established, Americans are at risk of having their privacy interests exposed, which will be discussed in section IV.

A. The Perceived Benefits of Police Worn Body Cameras

The perceived benefits of police worn body cameras, at first glance, appear to be extensive. Some of the most often cited reasons in favor of body cameras include, broadly speaking, enhancements to transparency in law enforcement and the ancillary benefits of such increased transparency. For example, so the thinking goes, increased transparency can lead to increased police legitimacy in the eyes of the public that is being policed.²¹ "Transparency can demonstrate to a community that officers aim to act in a fair and just manner (e.g. procedural justice) when interacting with citizens, which can increase perceptions of policy legitimacy."²² When the people see what officers are doing, in other words, such an insight into everyday police practices lends itself to greater legitimacy on the part of the police.

So too can increased transparency serve to improve individual (or collective) officer behavior, and, correspondingly, decrease the volume of citizen complaints against the police. In one comprehensive study performed in Rialto, California, researchers found that following the implementation of the police worn body camera program, citizen complaints against the police dropped precipitously, by some 87 percent, from 24 the year before the study to just three complaints during the period covered by the body worn camera study.²³ And the use of force by police officers dropped by approximately 60 percent, from 61 to 25 instances, once the body camera program was implemented.²⁴ In short, some research tends to indicate that officer behavior, and citizen complaints stemming from incidents involving officer-initiated use-of-force, can be improved by the use of body worn cameras.

Perhaps the most often cited reason in favor of the widespread use of police worn body cameras deals not with transparency but rather with a much more fundamental and "traditional" goal of policing: fighting crime. Advocates of the widespread use of police worn body cameras cite the perceived effectiveness of body...