Today, Customs and Border Protection Commissioner Gil Kerlikowske announced that the agency would spend three additional months studying whether body-worn cameras (BWCs) are suitable for deployment by CBP. The agency has been studying BWC deployment since 2014, and the effort comes after years of intense pressure by non-governmental organizations over a pattern of lethal use-of-force incidents since 2010.
The draft feasibility report released by CBP appears to give federal employee unions virtual veto power over the deployment of the cameras, stating "Successful union negotiations are required prior to implementation."
The report also makes clear that the cameras are being sold to CBP agents as a shield against public complaints, and less as an officer accountability tool:
Officers and agents must be willing to wear and operate their BWCs, without fear of reprisal. Officers and agents must have the confidence of knowing that the primary purpose of BWCs is to corroborate their sworn testimony, not create frivolous punishments. They also must be assured their privacy will be protected from unnecessary review and release.
In addition, the report outlines a number of factors that "may adversely affect CBP officers/agents, operations, and mission (sic)." However, upon closer examination many of these factors are easily addressed and need not impede the deployment of body cameras.
For instance, the working group writes:
The BWCs increase the cognitive load experienced by officer/agents, causing them to redirect their attention towards the operation of the camera versus allowing them to focus on the encounter. BWCs may also cause an officer/agent to second-guess a course of action.
Body cameras may take some getting used to, but the fact that some officers find operating the cameras difficult or distracting should not prevent the CBP from deploying body cameras. After all, dash cameras also presumably increased officers' "cognitive load" and caused some officers to second-guess their actions. And yet, dash cameras as now considered perfectly normal law enforcement tools. During a press call on November 12, CBP officials conceded that it was a mistake on their part not to have conducted a dash camera review as part of the initial BWC evaluation process, an oversight that will allegedly be corrected during the upcoming follow on evaluation process.
The working group also states:
BWCs cannot capture the physiological (sic) and psychological phenomena that an officer/agent experiences during a high stress situation. Consequently, the footage may not accurately convey the same sense of threat that is experienced by an officer/agent.
But no one is claiming that body cameras will capture everything an officer feels during an encounter or that body camera footage should be the only piece of evidence presented to investigators. Body camera footage should of course only be part of any misconduct investigation.
The draft goes on to state that the CBP’s “diverse operational environments” make its use of body cameras “less conducive than its application within the traditional law enforcement environment.”
The CBP ought to perhaps seek advice from other federal agencies such as FEMA and the Department of Defense if it believes that body cameras cannot be used in “diverse” environments.
Another concern that can be adequately addressed relates to intelligence gathering. The working group is concerned that body cameras
…may negatively impact intelligence gathering, such that the public may be less likely to divulge information if they know they are being recorded.
This is a concern taken seriously by civil libertarians and law enforcement officials. Work published by the Cato Institute addresses the issue of informants and undercover agents, recommending that police officers not be required to have body cameras on during interactions with sensitive intelligence sources. During the 2012 body camera experiment in Rialto, California officers were told not to have body cameras on during interactions with informants.
No one wants to see body camera deployments resulting in the compromising of confidential sources. Thankfully, this issue can be addressed by a policy allowing officers to turn cameras off when they are meeting with an informant or undercover agent.
In the November 12 press call, CBP officials stated that they had not asked for supplemental funding for the proposed BWC rollout for FY16 but that funding is being requested for FY17. Because CBP has yet to decide exactly how many cameras will be deployed and how much storage for the video footage will cost, CBP officials will only say they expect the final program to cost “in the tens of millions” of dollars. One way to pay for it would be to end DHS’s failed surveillance drone program and reprogram the funds for the BWC effort, but CBP officials have thus far not asked for such authority and have shown no interest in giving up the drone program.
It is crucial that the CBP gets its body camera policy right. While many Americans may think of the CBP as an agency that only operates on our nation’s borders its officers can search the roughly two thirds of Americans who live within 100 miles thanks to its internal checkpoints. Many of the use-of-force incidents that have caused the agency so much public grief have occurred at these checkpoints.
It is our hope that when CBP officers misbehave that it is captured by body camera and not by a cell phone in the hands of a conscientious member of the public, as was the case when Jessica Cooke was stopped at an internal checkpoint in New York.
Many of the CBP’s concerns related to body cameras can be addressed, as we have seen through the effective deployment of BWCs by other law enforcement agencies across the country. What is lacking is a clear sense of urgency to do so on the part of CBP leadership. The CBP’s “go slow” approach is extremely unwise given the number of lethal use-of-force incidents to date and the clear public safety benefits—for officers and the public--of a speedier BWC deployment.