April 15, 2015 2:13PM

The “Language of Privacy” Is Doing Well in Police Body Camera Discussions

In David Brooks’ latest New York Times column he explains that he is now a proponent of police body cameras, but adds that he did not come to his position “happily.” According to Brooks, the debate over police body cameras has revealed that an increasing number of people have lost “the language of privacy” and “an understanding of why privacy is important.”

It’s refreshing to read that Brooks does have concerns related to privacy. After all, Brooks said last June that the NSA’s snooping isn’t “particularly intrusive.”  But the rise of police body cameras is prompting a sensible conversation about privacy and why it is important.

Given the nature of their work, police officers regularly witness members of the public experience tragic and embarrassing moments, many times on private property. Police officers are often among the first at the scene of auto accidents or other life-threatening emergencies. They also talk to informants as well as victims of sexual and domestic abuse. In addition to sometimes entering private homes, police officers also occasionally visit hospitals and schools.

Brooks discusses some of the legitimate privacy concerns these kind of situations raise towards the end of his column:

When a police officer comes into your home wearing a camera, he’s trampling on the privacy that makes a home a home. He’s recording people on what could be the worst day of their lives, and inhibiting their ability to lean on the officer for care and support.

Cop-cams insult individual dignity because the embarrassing things recorded by them will inevitably get swapped around. The videos of the naked crime victim, the berserk drunk, the screaming maniac will inevitably get posted online — as they are already. With each leak, culture gets a little coarser. The rules designed to keep the videos out of public view will inevitably be eroded and bent.

Even the most committed advocate of police transparency and accountability must concede that the unedited release of all police body camera footage could lead to devastating infringements on a citizens’ privacy and potentially compromise ongoing investigations. A sensible police body camera policy will exempt some footage from public release. If a police officer arrives at the scene of a fatal auto accident, interviews a young victim of sexual assault, or gives a presentation in an elementary school there are serious privacy concerns that police body camera policies ought to address.

But, as should not come as a surprise, civil liberty advocates, lawmakers, and policing research organizations have written about these privacy concerns and when a police officer with a body camera should turn the device on.

In a paper written by the Police Executive Research Forum (PERF), with support from the Department of Justice’s Office of Community Oriented Policing Services, the authors recommend that recordings of conversations with informants and undercover officers be prohibited. The paper also recommends that recordings be prohibited in areas such as bathrooms where there is an expectation of privacy and that police officers be required to inform members of the public if they are on camera. In addition, the paper recommends that officers be required, regardless of state law, to obtain consent from crime victims before interviews are recorded.

ACLU senior policy analyst Jay Stanley wrote a white paper on what policies ought to be included when crafting rules for police body cameras. In the paper, Stanley correctly writes that the public disclosure of police body camera footage pits “two important values against each other: the need for government oversight and openness, and privacy.” Stanley argues that videos subject to public record requests should be redacted in order to protect privacy. Stanley has also written on police body cameras in schools.

Stanley’s ACLU colleague Scott Greenwood is quoted in the PERF paper saying:

An officer might be allowed to go into the residence and record, but that does not mean that everything inside ought to be public record. The warrant is an exception to the Fourth Amendment, not a waiver. We do not want this to show up on YouTube. My next-door neighbor should never be able to view something that happened inside my house without my permission.

Greenwood is also quoted recommending that the ACLU and police executive work “to ensure that state disclosure laws contain adequate privacy protections for body-worn camera videos.”

Indeed, some state lawmakers have introduced legislation, such as Michigan’s HB 4234 and Florida’s SB 248, which seek to limit the release of police body camera footage captured inside a citizen’s home. Florida’s SB 248 would also limit the release of footage captured within “health care, mental health care, or social services” facilities as well as “at the scene of a medical emergency involving a death or involving an injury that requires transport to a medical facility.”

State lawmakers, civil liberty advocates, as well as researchers with a focus on law enforcement have all contributed to the conversation that has naturally arisen amid the increased use of police body cameras. It seems to me that police body cameras have kept the “language of privacy” alive and well.

Of course, Brooks isn’t only concerned with the potential privacy violations that could occur when a police officer with a body camera enters a home. He is more broadly concerned that an increasing number of people don’t understand why privacy is important.

Brooks writes:

Putting a camera on someone is a sign that you don’t trust him, or he doesn’t trust you. When a police officer is wearing a camera, the contact between an officer and a civilian is less likely to be like intimate friendship and more likely to be oppositional and transactional.

I can’t speak for all readers, but I would be less likely to be antagonistic during an encounter with a police officer who was wearing a body camera. Indeed, there is some evidence to suggest that officers wearing body cameras can contribute to a reduction in police use-of-force incidents and complaints against police officers.

Brooks is right when he says the following:

Privacy is important to the development of full individuals because there has to be an interior zone within each person that other people don’t see. There has to be a zone where half-formed thoughts and delicate emotions can grow and evolve, without being exposed to the harsh glare of public judgment. There has to be a place where you can be free to develop ideas and convictions away from the pressure to conform. There has to be a spot where you are only yourself and can define yourself.

But it is Brooks’ not “particularly intrusive” NSA, rather than police body cameras, which risks compromising the zone in which citizens explore unpopular ideas and their “half-formed thoughts and delicate emotions.”

Police body cameras do raise a host of legitimate privacy concerns. But police body cameras are often used to record encounters that occur in public where, given the state of modern technology, none of use can reasonably expect the degree of privacy that, perhaps, we might otherwise like. The police encounters that take place inside private residences and inside hospitals and schools are being considered in ongoing conservations on body cameras, where the language of privacy is often heard.