The events in Ferguson have created a vigorous discussion around issues of police accountability and oversight of law enforcement in the United States. One idea advanced by many is the notion of having police-civilian interactions recorded by small, mobile video cameras, known as "body cams." The ACLU of Illinois sees the value of utilizing this emerging technology (mobile video cameras) in this fashion as long as there are adequate safeguards for personal privacy. Below is a memorandum developed by the ACLU of Illinois outlining the privacy safeguards we believe necessary to keep the focus on accountability and oversight of police, and preventing the use of body cams from becoming another broad surveillance tool.
In the wake of the shooting death of unarmed teenager Michael Brown (and subsequent protests) in Ferguson, Missouri, policy-makers and members of the public across the nation are looking for ways to enhance oversight and monitoring of law enforcement officials on the streets across the nation. This includes policy-makers, members of the public and law enforcement supervisors here in Illinois who are interested in having more information about the daily interaction between police officers and civilians on the streets of communities large and small.
A significant part of this discussion since the events in Ferguson has focused on the possible utilization of wearable body cameras by police officers. Many have argued that such cameras -- capturing daily interactions between police and civilians -- would serve as a check against the abuse of power by police, and provide an objective, irrefutable record of events which too often become a dispute in recollections between a police officer and a civilian.
The introduction of law enforcement body cameras raises a number of questions for the American Civil Liberties Union of Illinois. At the core of these questions is the issue of how best to increase accountability and oversight of police officers' conduct while not increasing and enhancing the explosion of surveillance and information gathering already being conducted by government. In the past we have expressed, for example, concerns about the lack of privacy protections guiding the use of the nation's most extensive system of surveillance cameras in the City of Chicago, as well as the lack of transparency in the collection of massive amounts of data by so-called fusion centers operated by the Chicago Police Department and the Illinois State Police.
But we are persuaded that with the application of several basic privacy protections up-front, before the technology of body-worn police cameras are widely utilized, we can achieve the desired oversight and monitoring of police without creating yet another tool for routine surveillance of the public. In short, the American Civil Liberties Union believes that we can make the use of policy body cameras a "win-win" for the public and for police.
There are four critical privacy protections that must be considered in any policy authorizing the use of police body cameras in the State of Illinois, including: how notice is provided to civilians that they are being recorded, regulation of what conversations are to be recorded, how long the recordings are stored and under what circumstances the recordings are disclosed to persons outside the police department.
We discuss each issue with our recommendations below.
Fundamental to protecting the privacy of civilians is the principle that one must know that they are being recorded by a law enforcement officer. And, while many observers make the comparison of body-worn cameras to the dashboard cameras mounted in many police cars that record traffic stops, the mobile technology of a body camera that is part of a vest or placed on the visor of a cap or on a pair of sunglasses raises the reality that recordings could take place in areas where one has a high expectation of privacy -- including one's home or apartment. The potential of this level of intrusion requires that civilians know that their conversation with the police officer is being recorded and stored.
The ACLU of Illinois recommends a simple step to address these concerns. When a police officer is recording a conversation they must be required to notify the civilian or group of civilians they are speaking with that a recording that is being made. This is not difficult, and requires little additional effort beyond the office simply saying "I am recording this conversation." For those instances in which an officer is not in uniform when they are recording, the officer should be required both to self-identify as a police officer and to provide notice of recording.
When to record
The issue of when a conversation should be recorded between a police officer and a civilian is at the heart of this issue. If each individual police officer is allowed to activate and deactivate the body camera on their person, there is a greater chance that an officer may cease recording an interaction that results in a use of force or become contentious in some other fashion. Some observers across the nation have suggested that the easiest solution to this possibility is to simply begin recording by an officer's body camera when they leave their police station for their daily shift, and cease recording when the police officer returns at the end of the shift.
This is unfair and overly-intrusive to the police officer. A constant recording for their entire shift would not allow an individual officer during time off or a break to use the restroom without surveillance or speak to a spouse or lawyer or union representative or physician without having their conversation recorded. For this reason, the ACLU of Illinois rejects the idea of continuous, uninterrupted recording.
The rejection of this notion, however, makes necessary the setting of a clear, bright line for when an individual officer is required to activate their body camera, so that the discretion is not so great that an officer might be able to evade recording events when they felt disposed or likely to use force. This discretion, viewed in this manner, might defeat the very oversight, monitoring and accountability broadly desired by the public currently.
The ACLU of Illinois recommends that police officers be required to activate the recorder during every interaction with a civilian. Consistent with our earlier recommendation that notice be provided to the public, the officer should then be required to record throughout the entirety of the interaction with a civilian. We recognize that this requirement will capture a host of interactions, from stop-and-frisk searches to tourists approaching a police officer looking for directions to a landmark. The collection of this broad range of interactions -- and great amount of data -- is necessary in order to preclude individual police discretion resulting in the body cameras yielding little of the oversight and monitoring that is driving this discussion today.
We make one exception to this policy – that is, that officers should not record interactions involving First Amendment activity (e.g., a protest, demonstration, or rally) absent some reasonable suspicion of criminal activity. This is speech and expressive activity that should not be captured and cataloged by police.
Given our recommendation that all police-civilian interactions be captured, it is obvious that an enormous amount of data will be created by these recordings. For this reason, it is critical that law enforcement agencies have strong, secure policies and procedures for storing and retaining the recording of conversations between police and civilians. Like other surveillance databases, it is critical that these conversations be secure -- both from unauthorized access from outside a police agency as well as from manipulation and erasure from within a police department.
The ACLU of Illinois recommends that these recordings be destroyed by the police at the end of 90 days, unless the encounter has been "flagged" -- in a instance where force has been used, where a detention or arrest has resulted, where a formal or informal complaint has been filed by the civilian or because a supervisor in reviewing the recording believes that it should be retained for internal purposes. We would encourage law enforcement supervisors to periodically review and monitor recordings, especially for officers who are involved, for example, in high profile street activities such as stop-and-frisk searches of individuals in cities.
The presence of this large cache of data and video will create a hunger among many for access to this information. And, since the goal of the body cameras is to increase oversight, accountability and transparency of police, there is a temptation to ignore the personal privacy implications of releasing this video. Those implications require that public disclosure of any police-civilian recording should be done in very limited circumstances and with an eye toward protecting the privacy of innocent civilians who might be caught up in the recording.
As a beginning point, the ACLU of Illinois recommends that individuals who are recorded by police officers should always have access to, and the right to make copies of, those recordings. Such requests for a copy of a recording should be made to counsel for these individuals as well. Next, any recording that is flagged -- that is, any recording that is saved for the narrow set of reasons articulated above -- should be released to the public on request. On the other hand, any recordings that are not flagged should not be released to the public during the time before they are deleted as described above. Finally, no recordings should be disclosed to other government agencies unless a supervisor determines they are relevant to an ongoing investigation or contain evidence of criminal activity.
With good privacy policies like those outlined here, the American Civil Liberties Union of Illinois believes that body cameras on police officers can provide an effective tool for providing oversight of police officers and increasing public confidence in the police that patrol our communities. But we should not simply deploy these cameras widely and presume that the system is working without any problems.
Police agencies should periodically report to the public about the use of body cameras by police. The public should know (in an aggregate fashion) how often videos are flagged and for what reason.
Moreover, police departments should provide information about any instances in which police-civilian conversations are not recorded and the circumstances that led to the lack of a recording.
Finally, the American Civil Liberties Union of Illinois recommends that police work with academics and other social science researchers to study the impact of the use of body cameras as they are deployed. We are currently aware of only one study analyzing the use of body cameras by police in the United States. (That study suggests that body cameras reduce both public complaints against police and the use of force by police against the public.) We should study the impact of these cameras, in order to analyze further changes the policies and protections outlined here.
In the modern age of technology, we have the capacity to use new tools to address old problems. For years, many communities across the nation have complained about the excessive use of force by police in their neighborhoods. In response to these complaints, law enforcement leadership has pointed to policies that control the use of force. But little has been known -- by the public and by law enforcement officials -- about how these policies on the use of force actually are implemented on a daily basis on the streets. Body cameras can assist in that process, but will be valuable only if civilians' privacy is protected.
We encourage the adoption of these modest privacy protections to strike the appropriate balance in the deployment of body cameras for police officers across Illinois.