Testimony Regarding the Risks and Promises of Police Body-Worn Cameras
Written testimony of the New York Civil Liberties Union given by Johanna E. Miller, Advocacy Director. Submitted to the New York State Assembly Committee on Codes on December 8, 2015 The New York Civil Liberties Union (“NYCLU”) respectfully submits the following testimony regarding the risks and promises of police body-worn cameras. The NYCLU, the New York State affiliate of the American Civil Liberties Union, is a not-for-profit, nonpartisan organization with eight offices across New York State and 50,000 members and supporters. Our mission is to defend and promote the fundamental principles, rights, and values embodied in the Bill of Rights of the U.S. Constitution and the Constitution of the State of New York. A key component of the NYCLU's work is to promote transparency and accountability for police departments. In this role, we have advocated for the establishment of civilian complaint and officer discipline mechanisms that are accessible, transparent, and effective in holding police accountable for their actions. We have worked to ensure police department policies and data about police activities are publicly available. We have represented individual clients and experienced firsthand how difficult it is to achieve accountability for officer misconduct, particularly in cases where the only evidence is one person’s word against an officer’s. We are hopeful that police body-worn cameras (BWCs) are a step in the direction of reforming police practices, furthering transparency and accountability, and making street policing safer and more just for both officers and the public. It has been suggested that knowing a BWC is in use can actually improve the behavior of police and civilians in street encounters.i If evidence indicates this effect is real, investment in BWCs could represent enormous progress in improving community-police relations and officer accountability. If they can also be used to achieve meaningful accountability for abuse by police officers without undue infringement on privacy rights, they will be one of the most valuable reform steps we can take. Many important questions remain, however, and in the rush to adopt new technology, police departments are overlooking important issues. In 2014, the Department of Justice (DOJ) and Police Executive Research Forum found that 63 of 500 surveyed police departments were either using or testing BWCs, but only one-third of those departments had written policies regarding their use.ii The New York Police Department (NYPD), the largest municipal police force in the country, has announced a BWC program; it remains to be seen how NYPD will use the experience of its pilot program and what regulations will govern BWCs now and in the future. We hope the state will use grant programs, transparency and privacy standards, and best practice guidelines to encourage police departments to adopt sensible and enforceable policies for the use of BWCs. To that end, we have the following recommendations. 1. Ensure BWC programs are designed to maximize officer accountability The single biggest threat to the effectiveness of BWCs in reducing police misconduct is the enormous level of control officers and departments have on the devices and the information captured. In order to have a positive impact on police-community relations, BWC programs must be designed to maximize officer accountability, public accessibility, and third-party oversight. At the most basic level, cameras must be on and recording during all law enforcement encounters, except where an individual’s privacy is a paramount concern (as described in section 4). Efforts must be made to minimize opportunities for officer interference with cameras and to ensure footage cannot be manipulated or deleted improperly. This can be achieved through creating default rules for operating the camera and serious consequences for failing to do so. In order to counter officers’ powerful motivation to not record when they behave improperly, department disciplinary rules should create a presumption against the officer for failing to record an interaction when required to do so (rebuttable through evidence of mechanical malfunction). Officers who fail to produce recordings of interactions that are under investigation on multiple occasions should face serious consequences, including suspension and termination. In court proceedings, a presumption against the officer’s version of events could be employed to encourage recording of interactions.iii Departments must retain footage for the amount of time necessary to ensure it is available as evidence in related criminal and civil cases, complaints against officers, or other accountability proceedings (though not indefinitely; this point is discussed below). It is vital that footage not be destroyed or misplaced before it can be used. The period of time for which footage is retained may need to change based on the type of information recorded; for example, the statute of limitations in New York for filing a federal civil rights claim is three years. For prosecuting a murder, however, there is no statute of limitations. Footage that records no law enforcement interaction with the public will need to be destroyed quickly, to protect privacy and for practical reasons. This complexity requires departments to develop means of identifying and organizing recordings that capture different types of interactions, a level of data management that most departments are probably ill-equipped to implement. We hope the state will take note of this complexity and create standards, or at least guidelines, to assist departments in managing this information. 2. Protect against privacy intrusions. We are acutely aware of the need to balance the promise of BWCs with the protection of New Yorkers’ privacy rights. We recognize the risk that BWCs could be used to gather surveillance of innocent people, that footage of street stops could be used to create a database of “usual suspects,” or that recordings of people in sensitive situations could be used to coerce cooperation with law enforcement. In conjunction with recently-announced “predictive policing” technologies, BWC footage could be used to create a total police state. Enforceable privacy protections are therefore essential to the success of this program. The state must not trust the NYPD to police itself in this area. Indeed, the history of the NYPD is flush with examples of unjust privacy intrusions, from spying inside mosques to creating a database of innocent people as part of the Stop and Frisk program. BWCs can record inside a home, hospital room, restroom, and any other sensitive location where a police officer enters. They can record nearly any type of interaction, from interviews with sexual assault victims to officers blowing off steam with their colleagues. Rather than creating rules to navigate the entire landscape of situations where privacy could be an issue, we recommend three mechanisms for governing BWC use that we believe can greatly reduce the potential for privacy intrusions:
- BWCs should only be used to record police interactions with the public that have an investigative or law enforcement purpose, not casual interactions or mere observations. Community members need to be able to trust that they can speak to officers privately. This requires that individual officers retain the ability to de-activate the camera, making it even more important that departments establish effective means of ensuring officers record when they should.
- Members of the public must be on notice that they are being recorded, through visual cues or the officer’s explanation (with considerations for the visually impaired and people who do not read or speak English).
- Absent exigent circumstances, such as a police raid or execution of a warrant, people should be able to refuse consent to be recorded.