Who will watch the watchers?

In light of the Baltimore protests over the death of Freddie Gray, I thought it would be a good time to discuss police body cameras. To be fair, there has been no shortage of opportunities to discuss police sousveillance this year, but recently it seems that the debate is pretty much settled, with public opinion, politicians, and the Department of Justice all supporting a requirement for body cameras. The development is logical; the debate surrounding police uses of force (particularly lethal ones) too often revolves around details that are uncertain, perhaps even to the officers in question, and an objective source of information is needed to properly contextualize the officers’ actions. Body cameras fill this niche nicely, providing credibility to officers who act appropriately and accountability to those that do not. Yet body cameras do not simply record police incidents, they record everything, and managing the public’s access to this body camera footage has privacy advocates wringing their hands. The data must be accessible to the public if it is to be meaningful, but that access must be balanced against the substantial privacy concerns that it will raise.

The primary mechanism for public access to government information is the Freedom of Information Act (FOIA). While not as sexy a topic as police brutality, FOIA is the most likely means that will be used to access the information body cameras record, and its efficacy can make or break this push towards greater police accountability. While it might seem facially simple, (you request the information and the police provide it), in reality police record disclosure is mired with complexities. FOIA is structured as a broad right of access to information with a large number of exemptions, and as is often the case, the exemptions in many ways swallow the rule. Numbering nine, these exemptions are largely what you would expect (for national security, trade secrets, etc.), but I’ll be focusing on the police exemption, which is further divided into what I’ll call the privacy exemption and the efficacy exemptions.

(To clarify, FOIA only applies to federal agencies, and therefore does not apply to state police departments. Each state instead has its own access to information law, and although these are often modeled upon FOIA, they are technically distinct, and will vary in their degree of transparency.)

FOIA and Privacy

The FOIA police privacy exemption is conceptually straightforward: police records contain a great deal of potentially private information, and we must manage the public’s right to access that information with the right to privacy of the data subject(s). FOIA manages this by exempting “records or information compiled for law enforcement purposes . . .  (that) could reasonably be expected to constitute an unwarranted invasion of personal privacy.” As you’ll probably note, the language used here is unbearably lawyerly, with “reasonable,” “unwarranted,” and even “personal” all making this definition surprisingly unhelpful. Are some privacy invasions not “personal?” What would make them “warranted?” And don’t get me started on “reasonable.”

Comparing this language to the other FOIA privacy exemption (for medical records) doesn’t help much, as it only applies to “clearly unwarranted invasion[s] of personal privacy.” So medical privacy invasions must be clear, while police privacy invasions must only be “reasonably expected.” That’s not particularly helpful, but at least we can be pretty sure that the police exemption is easier to satisfy than the medical records one, meaning these records will be harder to obtain.

Regardless of when exactly information is exempted, FOIA achieves this by redacting information that falls into the privacy exemption. FOIA was enacted primarily to give the public access to documents, which are relatively easy to redact. Classified, private, or otherwise sensitive information can simply be blacked out (see here), leaving the unprotected text for public access.

The problem of course is that this document-oriented framework breaks down when applied body camera footage. The sheer amount of data body cameras generate will make editing a herculean task, and video is not as amenable to redaction as documents. While digital obfuscations do exist, they are also easier to undo. Furthermore, imagine the amount of footage that might need to be redacted. The contents of people’s homes, cars, and personal lives will all be on display. Imagine an episode of Cops, multiplied by every police officer in the country, and without a TV budget to pay for video editors. While most officers’ patrols are hopefully not eventful enough for prime time, a huge amount of sensitive information is still likely to be on display.

Reporter’s Committee

One final point on the FOIA privacy exemptions is the case of Department of Justice v. Reporter’s Committee. This was a Supreme Court case looking at the police-record privacy exemption as applied to an FBI rap sheet — a compilation of an individual’s local and state police criminal records. Although composed of entirely public documents, the Court held that there was a greater expectation of privacy in these composite files created by the FBI, and that the FOIA request had failed to meet the heightened burden of showing a public interest in this information. Emphasizing the difficulty in acquiring this information, the Court said that although the information wasn’t private, it was practically obscure, and used this to justify a higher requirement for public access. (For reference, the FOIA request in Reporters Committee involved a crime family believed to be receiving illegal defense contracts from a corrupt Congressman. That strikes me as a fairly substantial public interest, but it wasn’t enough to overcome the privacy exemption.)

Reporter’s Committee is unlikely to be directly binding on police body camera footage, but I think its discussion of practical obscurity is useful for considering how courts will view the public disclosure of such large quantities of private information. There is something normatively different about video footage as compared to written documents, even when addressing the same subject matter, and I suspect that courts will be reluctant to nonchalantly hand over so much private information. FOIA has addressed the issue of video footage to some degree, (dash-cameras and security surveillance are accessible via FOIA), but the potential for private information to be available with body cameras is unprecedented, and I suspect that the public access to these videos will not be as forthcoming as the public discussions seem to infer.

FOIA and Police Efficacy

This is reinforced by the other set of justifications for restricting public access to police body camera footage: that revealing this information to the public would substantially hinder ongoing and future law enforcement activities. The FOIA police record exemption has six subparts, and only one of them is directed towards privacy. The remaining subparts address practical concerns raised by disclosure of police records, which include threats to public safety, the identity of sources, and concerns about revealing police investigatory techniques. I’ve discussed previously how increased public scrutiny of police investigations can reveal police techniques to criminals, and body camera footage will be replete with this type of information. While truly undercover officers obviously wouldn’t be required to wear body cameras, there is a whole realm of police investigatory techniques that, while not secret, would actively hinder police investigations if they became common knowledge. This is ultimately outside of my area, so I won’t go into too much detail, but it is useful to remember that some degree of secrecy is often necessary for the police to do their job.

This also includes evidentiary concerns that public disclosure can implicate. Disclosing evidence to the public prior to trial can negatively impact the prosecution’s case, particularly if it reveals the identity of confidential informants. And from the perspective of defendants, unfiltered public access to investigation and arrest videos could expose information that would be inadmissible on Constitutional grounds, or which might otherwise prejudice their right to a fair and speedy trial. While these are really only applicable during the pendency of a trial, they still raise legitimate reasons for restricting public access to police records.

Did I Leave Anything Out?

But perhaps my dalliance into the FOIA exemptions was unwarranted, as after all, some police departments are specifically excluding police body camera footage from state FOIAs. As I mentioned in parentheticals above, each state has its own version of FOIA, and they may choose to exclude body camera footage entirely. (The term “exclude” is important here: “exemptions” don’t have to be disclosed; “exclusions” are not subject to FOIA whatsoever.) So while an exemption could be overcome by showing a compelling interest, an exclusion is completely off the table.

While not ideal, this isn’t as huge a problem as it might first appear. The primary purpose of police body cameras is for the information to be available to those who will review and adjudicate police behavior. Defendants in criminal cases, plaintiffs alleging police brutality, police oversight committees: these are the parties that will benefit most from body camera recordings, and their access will not be contingent upon public access laws like FOIA. For the remainder of the public, access to this footage isn’t imperative, and the public will still have access to the adjudications themselves. Although greater public access is desirable, body cameras implicate more substantial concerns than other public records and their widespread disclosure may be more harmful than beneficial.

Finally, we should recognize that body cameras may not be the panacea many view them to be. The body camera might show the public what happened, but how the public interprets those actions might be the bigger problem. The question in each of the recent police use of force cases has ultimately been whether the suspect presented a legitimate threat to the officer or to the public, and our interpretation of the “threat” tends to vary along the same social and political lines that this debate already stratifies. For instance, the Supreme Court case Scott v. Harris heavily relied on video recordings, so much so that the court placed the video on the Supreme Court’s website saying they’d let the video speak for itself. Yet when the attorneys for the defendant (who lost) tested the Supreme Court’s assertion, they found that interpretations of the video were not nearly as definitive as the Court assumed. Groups generally classified as liberal tended to view the police’s actions far more critically than groups generally classified as conservative, suggesting that video footage might only clarify the degree to which the public disagrees on these fundamental questions of interpretation.

Despite all of the problems I’ve raised, I am overwhelmingly in favor of police body cameras. Indeed I tend to be pro-surveillance generally. I am often struck by how rapidly the public perception of surveillance technologies (in which I would include body cameras) shifts following a tragedy, where things that once were “creepy” suddenly show marked social benefits. While they may not solve all of our problems, body cameras will at least provide the context so that we can determine what the real problems are.

-Scott

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