Around the country we’re seeing a new battle shape up over police body cameras: whether all body camera footage should be exempted from public release. Body cameras unavoidably raise tensions between protecting privacy and promoting transparency and accountability, so “who gets access to the footage” is one of the most important questions any sound body camera policy must answer.
Complex policy challenges, like this one, are rarely resolved with simplistic solutions, so it is troubling that a growing number of jurisdictions, like South Carolina and the LAPD, are adopting absolutist approaches to resolving this conflict by exempting all footage from public disclosure.
Supporters of exempting any and all body camera footage from public disclosure often claim that such policies are needed to protect privacy. But while concerns for privacy do justify restricting public access to most body camera footage, privacy concerns cannot justify a total ban on public access. The vast majority of body camera footage is going to capture either mundane activities (a citizen asking an officer for directions) or activities that are of interest based solely on some prurient entertainment value (someone embarrassing themselves during a DUI stop). Given these videos’ lack of societal importance, there is no reasonable justification for brushing privacy rights aside to allow the public have a look.
On the other hand, for some publicly significant videos, transparency needs to trump privacy. For example, when a police officer uses deadly force against an unarmed citizen, the entire public (not just the subject of the video) has a legitimate interest in understanding what took place, whether the actions constitute a broader threat to the public welfare, and whether remedial measures are necessary. In those circumstances, the public’s interest in being well-informed about the actions of police officers, who are government actors, exceeds any individual’s right to privacy. Any regulations that fail to account for this second category of videos should be viewed with considerable skepticism.
Striking the right privacy/transparency/accountability balance for police body cameras is not easy. The ACLU’s model policy body camera bill dedicates four pages to crafting a public access policy that achieves a workable and beneficial balance. The LAPD sets forth its standard in one small paragraph. South Carolina’s law addresses the issue with a single sentence.
South Carolina and the LAPD have taken great pride that they are, respectively, the first state and largest police department in the nation to mandate to universal deployment of police body cameras. But that pride is misplaced. The LAPD and South Carolina regulations, like other no-access policies that have been considered in places like Michigan, Texas, and Washington, D.C., are not only painfully one-sided, but also seem utterly tone-deaf to the fact that the nationwide clamoring for body cameras is based upon the hope that they will improve police-citizen interactions, increase transparency, and promote police accountability. Remember, under these rules, law enforcement agencies will still be able to release video footage when they want to. The inevitable result will be that footage of heroic officers saving babies will be released, as will footage providing exculpatory evidence for officers, but videos showing officers engaging in inappropriate and/or unlawful conduct will not. Ultimately, this means police body cameras will be turned into a police propaganda tool. There is no pride to be taken in that.
Throughout the nation, the argument that the public must be denied access to ALL body camera footage because of privacy concerns has only one real proponent: law enforcement. Organizations like the ACLU, which for nearly a century has been one of the nation’s leading privacy advocates, are not making this argument. Instead, it’s law enforcement that has inexplicably thrust itself into the role of Chief Privacy Protector.
I recently spoke at a body camera symposium at which more than 200 law enforcement officials were in attendance. Overwhelmingly, their answer as to why police officers might oppose body cameras was “fear of change.” One officer expressed his concern that only negative footage would end up on the Internet, and that would harm the public perception of law enforcement. Although I have no doubt this concern was genuine, we already know that videos with content favorable to police are regularly released. Moreover, concerns about the public being exposed to too many negative videos should be a justification for improving police behavior, not for hiding evidence of bad behavior. To my surprise, I didn’t hear any officer say “I don’t want every minor mistake I make captured on video and used against me,” although I would have certainly expected such a misgiving (the ACLU model policy proposes measures to prevent this, incidentally). And not even once did I hear a law enforcement representative say “I’m personally worried the cameras will violate citizens’ privacy.”
Law enforcement presenters and attendees at the body camera symposium seemed to universally recognize that the body camera train has left the station, and that body cameras are destined to become a fact of 21st century policing. I suspect members of law enforcement who remain wary of body cameras have made a strategic decision that, since they cannot prevent their deployment, the next best approach is to empower law enforcement with sole discretion over what, if any, body camera footage sees the light of day. The protecting privacy justification for total bans on public access to body camera footage is nothing more than a Trojan Horse, designed to conceal the real objective of preventing the widespread circulation of footage showing police misconduct.
We care passionately about privacy rights at the ACLU. We also care deeply about racial justice, reforming police practices, criminal justice reform and public safety. We are committed to working very hard with every relevant stakeholder, including elected officials and the law enforcement community, to develop police body camera policies that balance all of these critically important interests. But as we have said before and often, the difference between police body cameras being a helpful or harmful tool lies in the policies that govern their use, and the blanket denial of public access to body camera footage is certainly not the right policy.