Police body-worn camera policy: balancing the tension between privacy and public access in state laws.

• Author: Maury, Kyle J.

INTRODUCTION

"The system failed us again." (1) The sounds of gunshots and broken glass swirled in air full of smoke and tear gas. On November 24, 2014, the streets of Ferguson, Missouri, erupted into "a new wave of anger" after a St. Louis grand jury refused to indict Officer Darren Wilson, who fatally shot unarmed teenager Michael Brown a few months prior. (2)

On August 9, 2014, Wilson observed Brown walking down the middle of the street and ordered him to the sidewalk. (3) Seconds later, a physical struggle emerged through the open driver-side window of Wilson's police vehicle. (4) Many witnesses agreed that Wilson's firearm went off inside the vehicle, causing Brown to flee, and Wilson to pursue on foot. (5) At this critical juncture--just moments before the fatal shooting--accounts drastically diverged. (6) Some witnesses recalled Brown moving toward Wilson "possibly in a threatening manner," while others asserted Brown "was not moving and may even have had his hands up when he was killed." (7) The inability to recon die these conflicting accounts is, perhaps, the dispositive reason why the grand jury refused to indict. (8)

Outrage on the streets of Ferguson represented "the latest illustration of deep divisions between minorities and police that have simmered for generations" (9)--the result of "a gulf of mistrust exist [ing] between local residents and law enforcement." (10) The wake of Brown's shooting led to calls for policing reforms. At the forefront: the implementation of police body-worn cameras, (11) which the White House believes will "help strengthen accountability and transparency" because "officers and civilians [will] both act in a more positive manner when they're aware that a camera is present." (12)

Despite political pressures calling for cameras, and their many apparent benefits, legal scholars and policy experts warn against rapid implementation (13) occurring at law enforcement agencies around the country, because many important policy questions remain unanswered. For example, what interactions should police record? Who will have access to observe recordings? Or disclose video recordings to the public? And how will privacy interests be respected? (14)

Body camera implementation remains in its infancy stage. As such, there is a dearth of legal scholarship analyzing the policy considerations associated with body cameras. Instead of raising the issues involved and assessing arguments for and against implementation, this Note assumes body cameras are a force for good and are here to stay for the long haul. Consequently, the goal of this Note is to analyze various issues involved in administering body cameras against a backdrop of recently enacted state legislation--focusing specifically on the tension between protecting privacy interests while also ensuring public access to recordings. This Note examines these competing values and makes limited policy judgments, and in light of these determinations, outlines recent body camera legislation and assesses to what degree current laws conform to these standards. This Note argues state laws have identified and sought to remedy the core issues created by body cameras; however, only some state laws strike a proper balance between respecting privacy interests and granting the public access to video recordings. Thus, many state laws continue to leave important gaps in their body camera policies.

Part I examines various visual technologies utilized by law enforcement and compares them to body-worn camera technology, identifying what makes body cameras unique and worthy of careful policy considerations. Part II discusses the benefits and drawbacks of body cameras, in order to contextualize the challenges of implementing policies. This Part functions in two ways. First, it assesses the benefits to understand why the technology is desired and rapidly being adopted. And second, it provides an overview of two major concerns body cameras create--privacy protections, and public access--and makes limited judgments about how policies should address these factors. Finally, Part III outlines newly enacted state legislation governing body cameras, focusing specifically on how cameras are used by law enforcement and the scope of viewing access granted to the public. Part III further analyzes these statutes in light of the policy judgments made in Part II and assesses where state laws are strong or in need of improvement.

1. THE RISE OF POLICE BODY-WORN CAMERAS

   Law enforcement has utilized many visual technologies over the last several decades to effectively police and prosecute crime. (15) Visual technologies were first utilized in the form of stationary surveillance, known as closed circuit television (CCTV) cameras, to protect public and private property. (16) Stationary visual technologies have expanded in recent years with the proliferation of red light cameras to enforce traffic laws, as well as automatic license plate reader (ALPR) cameras. (17) ALPR cameras photograph license plates, convert the photo into a digital file, transmit the file to a database, and then run the license plate numbers against "lists of stolen automobiles, active arrest warrants, and AMBER alerts ... [and] compare [s] them to known criminal databases, [to] flag suspected offenders." (18)

   Law enforcement has also effectuated mobile visual surveillance technologies. In the 1960s, the Connecticut State Police became the first law enforcement agency in the United States to attempt installing a camera inside a patrol car. (19) At that time, however, "the equipment was far too cumbersome to make it practical for routine use." (20) The miniaturization of technology in the 1980s, though, coincided with affordability and "catapulted audio/visual recordings into the mainstream of policing." (21) Law enforcement agencies across the country began to install and use dashboard cameras to record driving infractions, and in many cases, field sobriety tests. (22) Rapidly, video evidence became "the most effective method of providing the necessary evidence to support a conviction." (23)

   In the 1990s, video evidence from dashboard cameras helped jurors determine important factual questions, such as whether defendants consented to vehicle searches, or whether traffic stops were predicated on the basis of racial bias or prejudice. (24) The advantages dashboard cameras provided for resolving legal disputes, (25) combined with the large increase in allegations of racial profiling, led the Department of Justice's Office of Community Oriented Policing Services (COPS) to establish the In-Car Camera Incentive Program. (26) The main goal of the program was to "provide [] financial aid to state police and highway patrol agencies for the sole purpose of purchasing and installing in-car camera systems." (27)

   In 2002, COPS and the International Association of Chiefs of Police (IACP) conducted an eighteen-month nationwide study of in-car cameras, focusing on COPS grant recipients. The impact evaluation of the value of cameras to police agencies supported some of the reasons for expanding funding in the first place, such as addressing the rising number of racial profiling claims. (28) The data demonstrated that when officers were accused of misconduct, and "video evidence was available, the officer was exonerated 93% of the time; in 5% of the cases the complaint was sustained." (29) The study also concluded that dashboard cameras made incident review and prosecution more efficient, reduced agency liability, enhanced officer performance and professionalism, and improved community perceptions. (30) Overall, the IACP believes "in-car camera[s] enjoy[] overwhelming public support and can enhance an agency's image while ensuring integrity and accountability." (31)

   Today's modern technological innovations have propelled mobile visual surveillance into a new spectrum, as miniaturization and other technological enhancements since the 2000s have given law enforcement new tools to police and prosecute crime. (32) These innovations have changed the dynamic of policing in ways CCTV, red-light, ALPR, and dashboard cameras (33) have not. By equipping officers with "small, pager-sized cameras that clip on to an officer's uniform or are worn as a headset," police can " record audio and video of [their] interactions with the public." (34) The cameras provide "a record of interrogations and arrests, how officers conduct themselves, and what they witness at crime scenes." (35) It is, thus, the intimate nature of the interactions between citizens and police that have set body cameras apart from other surveillance technologies and propelled society into a new realm of modern policing.

   The first major experimentation of body cameras occurred in the United Kingdom in late 2005 with the Plymouth Basic Command Unit (BCU). (36) Officers utilized a prototype over a weekend shift (37) and saw "great promise" in the test runs. (38) This prompted the start of a pilot program to "fully test the technology and its potential effectiveness for the Police Service nationally." (39) The pilot program, known as the "Plymouth Head Camera Project," commenced in October 2006 with three hundred trained officers and fifty head-mounted cameras, (40) and lasted for seventeen months. (41) Plymouth BCU praised the initial pilot program, noting the cameras brought benefits of "deterring bad behavior and providing excellent evidence against crooks." (42) They also observed that "rowdy youths quickly calmed when they realized they were being filmed, and those arrested for drunkenness seldom challenged police when shown videos of their behavior." (43)

   The U.K. Home Office then commissioned an independent assessment of the pilot program "to identify issues of concern and to evaluate the benefits of the devices." (44) In 2007, the Home Office published its findings in Guidance for the Police Use of Body-Worn Video Devices, and concluded that the "use of...