Advocates of increased transparency in law enforcement are understandably keen to see more police officers wearing body cameras. Not only is there some evidence that police officers wearing body cameras contributes to a decline in police “use-of-force” incidents, footage from police cameras has provided useful evidence to those investigating allegations of police misconduct. Yet despite the benefits of police body cameras there are serious privacy concerns that must be considered and addressed as they become more common.

Perhaps the most obvious privacy concerns are those of the civilians filmed by police officers. If footage from police body cameras is considered public record then hours of footage of innocent people’s interactions with police officers is potentially available. It is not hard to imagine a situation in which police officers wearing body cameras enter someone’s home and leave without making an arrest. Footage of that encounter could reveal embarrassing or private information about the homeowner.

In November of last year it was reported that Washington police departments were reviewing their policies related to dash cameras and body cameras in the wake of an increase in requests for footage from the public via public record requests. As the ACLU has pointed out, Washington is one of the states where body camera footage is considered “susceptible to public release upon request.”

At the end of last month, members of the North Dakota House overwhelmingly passed a bill that would exempt police body camera footage of the inside of a private place from a public record request. North Dakota House member Kim Koppelman, who introduced the bill, said that the legislation would protect civilians in situations similar to the one I outlined above. Koppelman reportedly introduced the bill “at the request of West Fargo Police Chief Michael Reitan.” Koppelman and Reitan may be primarily concerned with the privacy of civilians, but a civilian could have a genuine interest in seeing the footage gathered by police officers in her home, especially if she believes that officers damaged property or behaved poorly.

Writing in The Atlantic,Conor Friedersdorf suggested a policy framework for body cameras that included the following:

Members of the public who appear in body camera footage can request that it be sealed in certain cases—if they are a crime victim or witness, for example—but if no civilian in a video objects, then any member of the press or public can at least view it.

I would extend “certain cases” to include incidents involving police officers filming the interior of private property. Mother Jones’ Kevin Drum recommends that different police body camera policies be in place for footage captured inside private property and for footage captured in public. Whatever body camera policies police departments and lawmakers implement, they must be clear about when footage of the inside of private property will be available to the public. This is especially important because, as Friedersdorf highlights in his article, police departments are oftentimes unwilling to release their body camera footage disclosure policy (if they have one at all).

Jay Stanley at the ACLU has proposed a policy regarding when a police officer should turn on a body camera; such polices:

should require that a police officer activate his or her camera when responding to a call for service or at the initiation of any other law enforcement or investigative encounter between a police officer and a member of the public. That would include stops, frisks, searches, arrests, consensual interviews and searches, enforcement actions of all kinds, and any encounter that becomes in any way hostile.

This sounds like a good proposal, although it doesn’t address what ought to be done if such a policy is in place and an officer does not have his body camera on during an encounter. However, in October 2013 Stanley wrote that if a police department has a policy in place requiring that officers have body cameras on for all interactions with the public then failure to turn on body cameras should be dealt with in the following way:

And this requirement [to turn on body cameras during interactions with the public] must have some teeth associated with it — not only a risk of disciplinary action but also perhaps an exclusionary rule for any evidence obtained in an unrecorded encounter (for police who have been issued the cameras, unless there is an exigency to justify the failure to record). Another means of enforcement might be to stipulate that in any instance in which an officer wearing a camera is accused of misconduct, a failure to record that incident would create an evidentiary presumption against the officer.

These potential consequences may be enough to encourage officers to habitually turn on body cameras during encounters with the public, although it shouldn’t be surprising if there are genuine instances of police officers forgetting to turn body cameras on, particularly as they are introduced into departments. With something like Stanley’s exclusionary rule being strictly interpreted police officers will have to become used to regularly turning body cameras on in cases when doing so might be awkward or encumbering, such as during an unexpected on-foot pursuit of a suspect.

Some might argue that in order to get around the problem of officers not turning their body cameras on at appropriate times that cameras should be constantly on during an officer’s shift. This is technologically possible. During the first randomized control experiment on the effect of police body cameras, which took place in Rialto, California, cameras with a battery life of at least 12 hours were used, although officers taking part in the experiment were not required to have the cameras on at all times. 

While it is technically possible for officers with body cameras to have the devices on throughout a shift, there are serious problems with this requirement.

First, police officers deserve some privacy while on the job. The public should hold police officers to high standards and expect honesty and transparency from law enforcement officials, but it remains the case that police officers ought to be able to talk to each other in cruisers about department gossip and other topics without fear that members of the public may request footage of the conversation.

Second, police officers sometimes have to interact with informants and minors who are the victims of sexual assault. It would clearly not be appropriate for such interactions to be filmed by officers. Indeed, during the Rialto experiment officers were instructed not to have their body cameras on during such encounters.

Both of these issues raise concerns regarding a policy requiring that police officers have body cameras on at all times during their shifts. Any good police body camera policy cannot require that the cameras be on at all times.

It is my hope that an increasing number of police departments will issue body cameras to their officers. However, the issuing of these cameras must be accompanied by well-considered body camera policies that take into account the privacy concerns of civilians and police officers and the impact body cameras may have on law enforcement officials doing their jobs. Police body camera policies must also take into account local policing needs and should be crafted in this country’s labs of democracy.