Body Cams: Privacy v. The Public’s Right to Know

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By Reed Anfinson

Publisher - Swift County Monitor-News

In the coming session of the Minnesota Legislature, set to start in March, how to classify body camera video within the state’s data practices law will be a key topic of debate for lawmakers. How to protect citizen privacy and not make the job of law enforcement more difficult by releasing data sensitive to investigations, while at the same time allowing the actions of law enforcement to be transparent, are issues at the heart of the debate.
Since the end of the 2015 session, the Legislative Commission on Data Practices has been studying how to handle the release of body camera video. Some would like to put in place restrictions that would, in effect, delay release long past the time when it was relevant to accountability and transparency. Others who have testified before the committee would see nearly unfettered access written into law.
Legislators will also debate policies on video captured within a home, hospital, or other place where people expect to have a right of privacy. Do officers have to ask permission to turn a body camera on before they enter a home? Some legislators think they should. But that would hurt both transparency and put law enforcement back in an “our word against their word” situation.
But there are U.S. constitutional issues that come into play. The Fourth Amendment guarantees, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures….” Will evidence gathered on a body camera video stand up in court or will it be thrown out?
The use of body cameras by law enforcement agencies is growing across the state and nation as the cameras get significantly less expensive, as agencies adopt them to aid supporting their actions, and as the public demands more transparency after too many cases where officers used excessive, even deadly, force but lied about it in their official reports.

Reasons for not releasing videos
Law enforcement will generally refuse to hand over body camera video when it is part of an ongoing investigation or when it shows scenes that are considered offensive of common sensibilities. Such content includes nudity or extremely gruesome crime scenes. Current law does allow authorities to withhold video of people who are the subjects of child abuse or sexual abuse.
But they have other concerns as well about what the video might show. It could identify witnesses who then become vulnerable to threats by criminals under investigation. They say this could lead to fewer witnesses being willing to cooperate in investigations. Then there is our individually assumed right to privacy.
 “Unlike police squad car cameras, body-worn cameras collect video footage inside people’s homes, schools and medical facilities, where there is a reasonable privacy expectation,” Minnesota Chiefs of Police Association Executive Director Andy Skoogman is quoted by the Associated Press. “These cameras capture incidents up close often during traumatic, revealing and personal incidents.”
Once an investigation is complete, current law almost always allows the content of that investigation be released – including what the body camera recorded. What that footage could show might simply be a discussion between an officer and a person he is questioning, but it might also involve a volatile scene within a home. The focus of the video might be an individual who is distraught, mentally ill, under the influence of drugs or alcohol, or physically abusive. But others are captured in in the video as well; children, spouses, friends and bystanders.
In the past, a person requesting data from an investigation could write about it to a limited audience while some crime magazines might have picked up the photos; but in both cases distribution was limited. That is not true today.
Videos can be posted to YouTube and other sites to be viewed worldwide. They can be retrieved by anyone who wants to do a quick Google search today, a year from now, or five years from now. Developing facial recognition technology will allow people in the video to be identified by name and found in background searches. Though innocent of any wrongdoing, a person in a video may be tainted by its content.

Reasons for access
Civil liberties groups, groups like Black Lives Matter, and average citizens who make claims of police abuse say that public release of body camera video is essential to holding officers accountable.
Take the case of Laquan McDonald. The unarmed teenager was shot 16 times by a Chicago police officer; most of the bullets were fired after he was on the ground. Today, a year after the incident, the officer in the case faces first degree murder charges. No charges would have likely been filed but for the release of the body camera video showing the shooting.
 “We see the value of body cameras is that we’re able to see what the police are doing for once,” Benjamin Feist, legislative director for the American Civil Liberties Union of Minnesota, told the Associated Press. “We want to make sure that they are not just shielding officer misconduct by making this private under the guise of trying to protect the privacy of individuals they are running into on the streets.”
In many cases, law enforcement agencies agree. They say that wearing a body camera can enhance the professional behavior of officers. Further, the AP wrote, the video can help shorten the time spent on investigations “from weeks to minutes.” It is hard to deny you did something, and fight the charges in court, when a video clearly shows you did.

Finding a balance
The difficult task facing the Legislature this spring will be balancing privacy while ensuring transparency and accountability for law enforcement actions. Rules have to be established that are uniform and not so burdensome to implement that they effectively become a roadblock to the timely release of video scenes essential to the public’s knowledge about incidents involving charges of police misbehavior and excessive force.
 

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