Recommendation 8.5: Develop clear BWC policies with community input.

BWCs bring about accountability only if departments have policies to ensure officers use the technology when required, as required, and without infringing on privacy interests.Community members should help develop BWC policies and training, and departments that haven’t yet adopted BWCs should engage the public when first considering using them in order to understand and address concerns about their use — and possible misuse. Communities can also urge city officials to pass legislation that requires public notice and gives community members the opportunity to provide input before the adoption of BWCs (or other technologies).[i]

Clearly state when officers are required to activate BWCs. BWCs can potentially resolve conflicts about police encounters and shed light on decisions leading up to critical incidents. For this reason, departments should work with communities to develop clear policies about when officers are required to activate them.[ii]Some departments require officers to activate BWCs when they leave the station and deactivate them when they return at the end of their shifts. Others require officers to record law enforcement activities and encounters with the public, including informal conversations with community members.

Critics argue that these approaches are too broad because they “undermine community members’ privacy rights and damage important police-community relationships.”[iii]A narrower approach requires officers to activate cameras when responding to service calls and during law enforcement-related activities, such as stops, arrests, searches, and pursuits — but not during informal encounters.[iv]Some argue that this approach is not broad enough because it gives officers too much discretion over which situations to record, which may result in the failure to record important encounters. An interaction intended as a welfare check, for example, could escalate quickly, and officers may not have enough time to turn on their cameras.

This report recommends a balanced approach: Departments should require officers to record all encounters with safeguardsto protect privacy and preserve community relationships.[v]This approach requires officers to inform individuals that they are being recorded if possible[vi](unless, for example, they are pursuing someone). This way, officers notify people that they are being recorded and protect youth, victims of sex crimes, and other vulnerable people from being recorded without consent.[vii]

BWC policies should also define what is meant by “encounters,” provide examples of them, and clearly state exceptions, such as recording lawful behavior (e.g., political or religious activity and conversations with confidential informants or child victims). This will help officers understand the policy and reduce ad hoc, discretionary approaches to recording.

Some states require departments to develop written policies regarding BWCs. Washington state requires departments to articulate when officers should activate and deactivate cameras, how they should respond when someone does not want to communicate on camera, and when to inform the public that they are being recorded.[viii]Maryland, meanwhile, created a commission to issue recommendations regarding best practices for BWCs.[ix]

To increase accountability and adherence to BWC policies, department leaders should detail consequences for noncompliance and require officers to provide written justifications when they violate BWC policies. As discussed below, department leaders should also prohibit editing, erasing, copying, sharing, altering, or distributing BWC recordings.

Train officers to use and maintain BWCs. To ensure that BWC policies are properly implemented, officers should be properly trained to use and maintain them. Officers should, for example, be trained to immediately activate BWCs at the beginning of encounters unless otherwise directed (e.g., when in contact with a child victim). BWCs should record 30 seconds of video (though typically not audio) prior to activation.[x]Timely activation ensures that entire events are recorded, including the moments leading up to them. Training should also cover the responsibilities for and restrictions on using BWCs, such as informing people that they are being recorded (again, when possible).

Officers should also be taught how to maintain BWC equipment to ensure that it functions properly. They should be trained to check BWCs at the beginning of every shift and to notify supervisors immediately if they are not working properly or are damaged. Training should also include practices to ensure (1) the integrity of recordings; (2) that the footage “chain of custody” is documented (i.e., who has possessed the footage and whom they have passed it along to and when); and (3) disciplinary action for improperly editing, erasing, copying, sharing, altering, or distributing camera footage.

Develop policies around the release of video footage. In general, departments should release video footage to those seeking to file a complaint[xi]and to next of kin in police-caused fatalities.[xii]Privacy concerns should be addressed before footage is released to broad, public audiences. To protect privacy, departments can blur bystanders, mute audio containing personal information, and ensure that public statements do not reveal private personal information such as gender identity, sexual orientation, immigration status, or place of birth.

Community and department leaders should mandate the public release of BWC, dashcam, or other footage of critical force incidents within a reasonable time (so long as policies don’t violate state or local law). And department leaders should work with community members to determine reasonable periods for release that consider both departmental concerns about investigations and community interests in information and transparency. In general, though, departments should release footage as soon as possible, especially after officer-involved shootings, to ease community tensions, address community concerns, and improve transparency.

Some state and local “open records” laws restrict whether and when departments can release BWC footage. For this reason, community members should research laws and policies and advocate for change if necessary. Some argue that releasing footage prejudices witnesses and/or potential jurors and interferes with investigations.[xiii]The criminal justice system has mechanisms in place that address these concerns, including voir dire (the process through which attorneys identify bias among potential jurors) and witness cross-examination.

Prohibit officers from watching video footage before filing reports for incidents under investigation. Department policy should prohibit officers from viewing footage before filing a report, providing a statement, or being interviewed about an officer-involved shooting, death in custody, criminal matter, or incident in which they have been accused of misconduct.[xiv]In such cases, officers should be allowed to view footage afterwriting reports and/or providing accounts and to edit to initial reports afterviewing them and explaining discrepancies.[xv]In 2015, the attorney general of New Jersey implemented a strong policy regarding potential criminal conduct (as opposed to administrative investigations); it prohibits officers from viewing video footage in all officer-involved shootings or use-of-force investigations under review by a prosecutor without express permission from the prosecutor.[xvi]

Require supervisory review of BWC footage. BWCs provide documentary evidence of police encounters and thus serve as an important tool for accountability and transparency. To this end, departments should implement policies for supervisory review and periodic audits of BWC footage. Specifically, supervisors should routinely — and, ideally, monthly — review footage of stops, searches, arrests, and force incidents to ensure that they comport with officer accounts and that actions taken align with department policy and local, state, and federal laws.

Supervisors should also conduct periodic audits of officers’ video footage to ensure that officers are performing according to department standards, and misconduct should be addressed by intervention and/or disciplinary processes. (For more detail, see Chapter 7.) For example, the Maplewood (Minnesota) Police Department spells out its review requirements accordingly:

At least two times per month, supervisors will randomly review BWC recordings made by each officer they supervise to ensure the equipment is operating properly and officers are using the devices appropriately in accordance with policy, and to identify any performance areas in which additional training or guidance is required.[xvii]

The Greensboro (North Carolina) Police Department underscores the need to review video for training and accountability purposes:

All supervisors are expected to routinely review BWC recordings created by their direct subordinates. …[D]uring this review supervisors shall be viewing multiple videos from each officer under their supervision, looking at the content of the video. While viewing these videos supervisors should be looking for any videos that would be beneficial to other officers in terms of training videos.

Monthly, the Body Worn Camera Administrator will audit randomly selected squads.   The number of squads selected for auditing, and the frequency of the selection process, will be determined by the Professional Standards Division to ensure that the number of employees audited each month represents a minimum of ten (10) percent of the total number of employees eligible for auditing.[xviii]

To ensure accountability, department policies should include discipline and other interventions (e.g., additional training) for BWC violations. (For more detail, see Chapter 7.)

Prohibit the use of facial recognition software with BWC footage. In 2016, a Georgetown Law report found that nearly half of U.S. adults’ photos (48 percent) had been entered into some type of facial recognition network.[xix]These networks use facial recognition software to analyze high-resolution images. Specifically, they use biometrics from BWC footage (or other footage or photos) to map out people’s facial features.[xx]They then compare that information with other images in a database to find matches.

Leading civil rights organizations oppose the use of facial recognition technology because they fear it will turn BWCs into a pervasive surveillance tool that will disproportionately impact communities of color.[xxi]The software, in fact, generates a higher rate of false matches for people of color, and especially women of color.[xxii]The technology can also disproportionately impact people of color because of discriminatory policing practices: Black people tend to be arrested at disproportionate rates and thus are overrepresented in database systems that rely on mug shot databases.[xxiii]Because of the potential for misuse and false positives, departments should not use facial recognition software to scan video footage.[xxiv]

Another concern (yet to be resolved in law) is whether facial recognition scanning constitutes a “search” under the Fourth Amendment (which protects people from unlawful searches and seizures). Recent court decisions reflect judicial wariness about warrantless use of technologies that enable surveillance of individuals — even if they are on public property. As the U.S. Supreme Court has recently observed, “A person does not surrender all Fourth Amendment protection by venturing into the public sphere.”[xxv]

[i]SeeACLU, Community Control Over Police Surveillance (CCOPS) Model Bill (Oct. 2018), https://www.aclu.org/other/community-control-over-police-surveillance-ccops-model-bill.

[ii]For example, the NYPD and the Camden County Police Department sought public feedback about the content of their BWC policies to reflect community interests and revise their policies based on the feedback. See New York City Police Dep’t, NYPD Response to Public and Officer Input on the Department’s Proposed Body-Worn Camera Pol’y (Apr. 2017), https://www1.nyc.gov/assets/nypd/downloads/pdf/public_information/body-worn-camera-policy-response.pdf; Camden Cty. Police Dep’t, Body-Worn Cameras, http://camdencountypd.org/body-worn-cameras/(last visited Jan. 10, 2019).

[iii]Linsday Miller & Jessica Tolliver, U.S. Dep’t of Justice, Community Oriented Policing Services & Police Executive Research Forum, Implementing a Body-Worn Camera Program: Recommendations and Lessons Learned 12 (rev. 2017), https://ric-zai-inc.com/Publications/cops-p296-pub.pdf.

[iv]Linsday Miller & Jessica Tolliver, U.S. Dep’t of Justice, Community Oriented Policing Services & Police Executive Research Forum, Implementing a Body-Worn Camera Program: Recommendations and Lessons Learned 12-13 (rev. 2017), https://ric-zai-inc.com/Publications/cops-p296-pub.pdf.

[v]Leadership Conf. on Civil and Human Rights, Civil Rights Principles on Body Worn Cameras, https://civilrights.org/civil-rights-privacy-and-media-rights-groups-release-principles-for-law-enforcement-body-worn-cameras/(“While some types of law enforcement interactions (e.g., when attending to victims of domestic violence) may happen off-camera, the vast majority of interactions with the public—including all that involve the use of force—should be captured on video.”).

[vi]See e.g., Consent Decree, United States v. Police Dep’t of Baltimore City, No. 1:17-CV-00099-JKB, ¶ 271 (D. Md. Jan. 12, 2017), http://www.mdd.uscourts.gov/sites/mdd/files/ConsentDecree_1.pdf(requiring Baltimore police officers to inform individuals “that they are being recorded unless doing so would be unsafe, impractical, or impossible.”).

[vii]Leadership Conf. on Civil and Human Rights, Police Body Worn Cameras: A Policy Scorecard 6 (2017), https://www.bwcscorecard.org/static/pdfs/LCCHR%20and%20Upturn%20-%20BWC%20Scorecard%20v.3.04.pdf;See, e.g., Oakland Police, Department General Order I-15.1 Portable Video Management System 3 (eff. July, 16, 2015), http://www2.oaklandnet.com/oakca1/groups/police/documents/webcontent/oak054254.pdf(activation is not required when interviewing a child abuse victim or sexual assault victim).

[viii]Wash. Rev. Code § 10.109.010 (2018), http://app.leg.wa.gov/RCW/default.aspx?cite=10.109.010.

[ix]H.B. 533, Reg. Sess. (Md. 2015), http://mgaleg.maryland.gov/2015RS/Chapters_noln/CH_129_hb0533e.pdf.

[x]Fraternal Order of Police, Body Worn Camera Recommended Best Practices 6, https://www.bja.gov/bwc/pdfs/FOP_BestPracticesBWC_Policy.pdf(the pre-event buffering mode is a “[d]evice feature where the camera continuously records and holds the most recent 30 seconds of video and audio prior to record activation. With this feature, the initial event that causes the officer to activate recording is likely to be captured automatically, thereby increasing the capability of recording the entire activity.”).

[xi]SeeLeadership Conf. on Civil and Human Rights, Police Body Worn Cameras: A Policy Scorecard 7 (2017), https://www.bwcscorecard.org/static/pdfs/LCCHR%20and%20Upturn%20-%20BWC%20Scorecard%20v.3.04.pdf.

[xii]Leadership Conf. on Civil and Human Rights, Police Body Worn Cameras: A Policy Scorecard 71 (2017), https://www.bwcscorecard.org/static/pdfs/LCCHR%20and%20Upturn%20-%20BWC%20Scorecard%20v.3.04.pdf.

[xiii]SeePolicing Project, N.Y.U., Should Police Departments Release Video After Officer-Involved Shootings?, YouTube (Mar. 22, 2017), https://www.youtube.com/watch?v=VNrDpeSYDic#action=share(The Policing Project prepared a video for its efforts in Los Angeles on this issue, setting out the competing concerns).

[xiv]See, e.g., Oakland Police, Department General Order I-15.1 Portable Video Management System 7-9 (eff. July, 16, 2015), http://www2.oaklandnet.com/oakca1/groups/police/documents/webcontent/oak054254.pdf.

[xv]SeeHarlan Yu & Miranda Bogen, Upturn, Leadership Conf. on Civil and Human Rights, The Illusion of Accuracy:  How Body-Worn Camera Footage Can Distort Evidence (Nov. 2017),https://www.upturn.org/reports/2017/the-illusion-of-accuracy/eten.

[xvi]Memorandum from John J. Hoffman, Acting Att’y. Gen. of N.J., ATTORNEY GENERAL LAW ENFORCEMENT DIRECTIVE NO.2015-1 15,19 Law Enforcement Directive Regarding Body Worn Cameras and Stored BWC Recordings (July 28, 2015), https://nj.gov/oag/newsreleases15/AG-Directive_Body-Cams.pdf.

[xvii]City of Maplewood, Minn., Body Worn Cameras Policy, Department Use of Data 7 (Aug. 29, 2016), https://maplewoodmn.gov/DocumentCenter/View/16805/BodyWornCamera?bidId.

[xviii]Greensboro Police Dep’t Directives Manual, No. 15.11:  Body Worn Cameras 8 (2016), https://www.greensboro-nc.gov/home/showdocument?id=32161.

[xix]Clare Garvie, Alvaro Bedoya & Jonathan Frankle, Georgetown Law Ctr. on Privacy & Tech., The Perpetual Lineup: Unregulated Police Facial Recognition in America 26 (Oct. 18, 2016), https://www.perpetuallineup.org/sites/default/files/2016-12/The%20Perpetual%20Line-Up%20-%20Center%20on%20Privacy%20and%20Technology%20at%20Georgetown%20Law%20-%20121616.pdf.

[xx]Clare Garvie, Alvaro Bedoya & Jonathan Frankle, Geo. Law Ctr. on Privacy & Tech., The Perpetual Lineup: Unregulated Police Facial Recognition in America 116-17 (Oct. 18, 2016), https://www.perpetuallineup.org/sites/default/files/2016-12/The%20Perpetual%20Line-Up%20-%20Center%20on%20Privacy%20and%20Technology%20at%20Georgetown%20Law%20-%20121616.pdf.

[xxi]See, e.g., 18millionrising.org et al., Letter to Axon AI Board 1 (Apr. 26, 2018), http://civilrightsdocs.info/pdf/policy/letters/2018/Axon%20AI%20Ethics%20Board%20Letter%20FINAL.pdf; ACLU et al., Letter to Jeffrey P. Bezos, Founder and Chief Executive Officer, Amazon.com, Inc. 1 (May 22, 2018), https://www.aclunc.org/docs/20180522_AR_Coalition_Letter.pdf; Clare Garvie, Alvaro Bedoya & Jonathan Frankle, Geo. Law Ctr. on Privacy & Tech., The Perpetual Lineup: Unregulated Police Facial Recognition in America 3 (Oct. 18, 2016), https://www.perpetuallineup.org/sites/default/files/2016-12/The%20Perpetual%20Line-Up%20-%20Center%20on%20Privacy%20and%20Technology%20at%20Georgetown%20Law%20-%20121616.pdf.

[xxii]See, e.g., 18millionrising.org et al., Letter to Axon AI Board 1 (Apr. 26, 2018), http://civilrightsdocs.info/pdf/policy/letters/2018/Axon%20AI%20Ethics%20Board%20Letter%20FINAL.pdf; ACLU et al., Letter to Jeffrey P. Bezos, Founder and Chief Executive Officer, Amazon.com, Inc. 1 (May 22, 2018), https://www.aclunc.org/docs/20180522_AR_Coalition_Letter.pdf.  54-55; Joy Buolamwini & Timnit Gebru, Gender Shades: Intersectional Accuracy Disparities in Commercial Gender Classification, 81 Proc. of Machine Learning Res. (2018), http://proceedings.mlr.press/v81/buolamwini18a/buolamwini18a.pdf;Drew Harwell, Amazon Facial-identification Software Used by Police Falls Short on Tests for Accuracy and Bias, New Research Finds, Wash. Post (Jan. 25, 2019), https://www.washingtonpost.com/technology/2019/01/25/amazon-facial-identification-software-used-by-police-falls-short-tests-accuracy-bias-new-research-finds/?utm_term=.7d381727c2be.

[xxiii]Clare Garvie, Alvaro Bedoya & Jonathan Frankle, Geo. Law Ctr. on Privacy & Tech., The Perpetual Lineup: Unregulated Police Facial Recognition in America 3 (Oct. 18, 2016), https://www.perpetuallineup.org/sites/default/files/2016-12/The%20Perpetual%20Line-Up%20-%20Center%20on%20Privacy%20and%20Technology%20at%20Georgetown%20Law%20-%20121616.pdf.

[xxiv]Clare Garvie, Alvaro Bedoya & Jonathan Frankle, Geo. Law Ctr. on Privacy & Tech., The Perpetual Lineup: Unregulated Police Facial Recognition in America 116-19 (Oct. 18, 2016), https://www.perpetuallineup.org/sites/default/files/2016-12/The%20Perpetual%20Line-Up%20-%20Center%20on%20Privacy%20and%20Technology%20at%20Georgetown%20Law%20-%20121616.pdf(“There is no interface of the face recognition system to any form of video surveillance, including surveillance cameras, drone footage, and body worn cameras.”).

[xxv]See Carpenter v. United States, 138 S. Ct. 2206, 2217, 2223(2018) (asserting that warrantless acquisition of cell phone records that enabled law enforcement to track subject’s movements over a period of 127 days violated Fourth Amendment); see generallyUnited States v. Jones, 565 U.S. 400 (2012) (concluding that GPS tracking device enabling tracking of subject’s movements for 27 days constituted a search under the Fourth Amendment).