April 3, 2015 1:39PM

When It Comes to Police Body Cameras, Federalism Is Key

Last week, Sens. Rand Paul (R-KY) and Brian Schatz (D-HI) introduced legislation that would create a pilot grant program to assist state and local police agencies in leasing or purchasing body-worn cameras. The bill requires states, “units of local government,” and Indian tribes wishing to receive a full grant to commit to a range of reforms related to privacy, police practice, and data storage.

The bill presents something of a dilemma for libertarians like me, who want increased accountability and transparency within law enforcement but are also hesitant to support federal policy prescriptions for issues such as policing, which are often best handled at the local level. Given the worrying body camera legislation that has been proposed by some state lawmakers, it is tempting to think that a conditional federal police body camera grant program might be the best way to ensure that local government agencies implement worthwhile body camera policies. Yet Paul and Schatz’s legislation shows that police body camera policy ought to be addressed at the state and local level.

This is not to say that the legislation does not contain some good policy requirements. If the bill were to be enacted as written, an entity (state, unit of local government, or Indian tribe) interested in receiving a full grant would have to demonstrate a commitment to implementing some sensible policies before officers use the body cameras.

Among those policies is the development of public regulations and protocols relating to the use of body cameras, the storage of body camera footage, and the protection of the privacy rights of individuals recorded by body cameras. This is an important requirement. As the ACLU discovered last year, some law enforcement agencies do not have body camera policies, and some of those that do choose not to release them.

Yet while the legislation does make committing to publishing policies related to the release of body camera footage a condition for receipt of a full grant, it does not require that these policies advance transparency and accountability. The legislation only requires that a requesting entity develop and publish policies for “the release of any data collected by a body-worn camera in accordance with the open records laws, if any, of the State” (my bolding).

This is worrisome considering that, according to the AP, "Lawmakers in nearly a third of the states have introduced bills to restrict public access to recordings from police officer-worn body cameras.” Some of these bills, such as Michigan’s HB 4234 and Florida’s SB 248, aim to protect citizens from privacy violations by exempting police body camera footage of the interior of private homes from disclosure. SB 248 extends this protection to footage captured at the site of medical emergencies and on the property of social service, mental health, and health care facilities. However, other legislation such as North Dakota’s HB 1264, which has been passed by the North Dakota House and Senate, exempts body camera footage "taken in a private place" from public record requests. New Hampshire’s HB 617 would make police body camera footage exempt from public record requests, though HB 617 would allow for citizens who pay for the recording to access body camera footage in which they can be seen or heard. (HB 617 would also require state police to use body cameras and to record all interactions with the public).

There is at least one case of a public record exemption bill being gutted in state legislatures. The Arizona House cut a section of a Senate bill that would have exempted police body camera footage from public record requests.

In addition to only requiring that entities receiving grants commit to developing and publishing policies relating to existing open record laws, the Paul and Schatz legislation also states:

IN GENERAL.—Data collected by an entity receiving a grant under this section from a body-mounted camera shall be used only in internal and external investigations of misconduct by a law enforcement agency or officer, if there is reasonable suspicion that a recording contains evidence of a crime, or for limited training purposes.

Unfortunately, the legislation does not outline how this requirement is compatible with comparatively open state public record laws that may regulate the release of police body camera footage.

Given that state lawmakers are working on implementing a range of police body camera policies, federal legislation such as Paul and Schatz’s would potentially allow for law enforcement agencies that are subject to poor open record laws to receive body camera grants. A good police body camera policy will allow for footage captured by the cameras that has been sensibly redacted and is not part of an ongoing investigation to be available via public record request. As written, Paul and Schatz’s bill provides no incentive for state lawmakers to improve their public record laws as they relate to police body cameras, although it does require that within 90 days of the bill being enacted the COPS director outline grant submission requirements.

In the coming years we should expect good as well as bad body camera policies to be passed by state legislators. While the bad policies will be frustrating to those advocating for increased police accountability and transparency, this frustration will not warrant the implementation of federal body camera grants. As with many other policy areas, police body camera policy ought to be crafted within America’s laboratories of democracy. As time goes on it will become increasingly clear which police body camera policies encourage good behavior and increase transparency as well as accountability, and are therefore worth copying.