Archive for December, 2014

How much truth is enough? Body cams and SPD’s impending transparency, privacy, and accountability crisis

By Timothy Clemans

The Seattle Police Department is testing body cameras. You can read the department’s body camera policy here: http://spdblotter.seattle.gov/wp-content/uploads/2014/12/12_17_14-Policy.pdf

I pushed the envelope so we as a society can once and for all address accurately recording of the truth, who should have access to the truth and what we are to do with the truth.

I believe this policy is a significant leap forward in transparency and fairness. However, the actions of officers and citizens will be public, leading to one of the most significant loss-of-privacy stories of all time. My public records requests for SPD video were the tipping point for mass publishing of police videos by Seattle Police. I pushed the envelope so we as a society can once and for all address accurately recording of the truth, who should have access to the truth and what we are to do with the truth.

This is the first policy ever to require officers to mark videos that require redaction per Washington’s public records act exemptions. And, unlike the policy for in-car video, this policy requires officers to tag every video with an event ID.

These two requirements lay the groundwork for automatically releasing videos not involved in an active investigation and not requiring redaction. According to the department’s Chief Operation Officer Mike Wagers, the City’s public records attorney Mary Perry has estimated that 95% of videos could be released without redaction by analyzing metadata. Mike does not know yet if the Video-to-Public IT project manager will sign off on automatic release of 95% of body camera videos. According to Sean Whitcomb in the SPD Public Affairs office, the department is in the final stages of publishing all videos released to a non-involved third party with the help of the Seattle Channel.

This policy is also the first I’ve seen to require the body camera to be activated at time of a 911 dispatch. I believe compliance with this requirement will ensure contacts with citizens due to a 911 dispatch are recorded in their entirety.

The policy also puts strict requirements on notifying people they are being recorded. Officers can not record inside places where the public is not allowed without consent unless there is a crime in progress or the officer can be there without a warrant.

I don’t believe this is about privacy. I believe this is about giving warning that their behavior will be recorded and therefore it is in their best interest to behave well. I do not think the consent requirement protects privacy, because a door will often be open when the denial of consent is recorded. Also citizens are fearful of objecting to an officer’s request.

I believe the notification and consent statements should include “this recording is a public record.” Very few people realize the department is working on overdrive to publish every video requested by a non-involved party on the Seattle Channel and possibly 95% of body cam videos. In addition I fully intend to obtain any video not published on Seattle Channel and make it available via YouTube. The department says videos will be retained infinitely.

The fundamental problem is that the policy says officers testing the cameras can not be held accountable if they do not have their camera on, per policy. I’m willing to let this slide for now, since this is the testing phase. When this rolls out for real, I want the policy to say something like “your employment will be terminated if you fail to turn on your camera and keep it on as required by policy more than three times, and immediately if your camera is off during a type 3 use of force incident.”

The City of Seattle will have the most transparent police force in the world. Our interactions as citizens with the police will be public. My fear is we may not get the accountability we so desperately need for officer actions, and that an unintended consequence could be the ruin of the lives of citizens who make mistakes. That said, I think officers and citizens will think harder before they act, knowing the world will be able to watch them tomorrow on YouTube. It certainly will become harder for the innocent to be wrongly convicted. A randomized California study showed decrease in use of force and complaints after body cam deployment. Now we need studies to ask “does crime decrease because every police video is placed online?”

As we move toward creating massive troves of public records through the use of video, we must take the time to evaluate the impact of those practices on privacy, on police-citizen interactions, and whether we are again the accountability we hope for.

In Depth: Context and Consequences for Police Body Cams in WA State

Body-worn police video technology will be adopted by more Washington state agencies. The time is ripe to discuss the policy implications of the data it is collecting and its impact on privacy. As Seattle Police Department prepares to partner with local technology experts on video redaction and posting, in preparation for its body cam pilot, Drew Hendricks takes a closer look at the existing legal framework for police video, as well as some of the less-discussed potential unintended consequences of body cams.

By Drew Hendricks

Body-worn police cameras have become the latest in a long line of technological solutions to the ongoing crisis of confidence in police accountability. Why are they suddenly so much in the news, when comparable products have been around for at least a decade?

Police video will never be as transparent to the public as it will be to police administrators and managers.

TASER International and BWVSG

The Body Worn Video Steering Group has promoted the use of “Body Worn Video” as they term it, since mid-2013. This group, which was started in the UK but now includes many US agencies as well, is endeavoring to “design the future of Body Worn Video.” Notably, BWVSG is in part sponsored by Reveal Media, a UK company which manufactures body worn cameras. BWVSG advocacy and the advertising and lobbying efforts of US-based company TASER International are part of why we’re been hearing so much about this technology in the last few months, despite relevant products being available now for nearly a decade.

With proponents calling for a national “Michael Brown Law,” which would mandate body worn cameras on all police officers, some local departments, such as Seattle Police Department, are seeking help from local technologists to address such practical problems as the burden of fulfilling public records requests on video, and the protection of privacy required by law. Other Washington State departments are approaching the technology more cautiously.

Laws governing police video and its use have more than thirty years of history with the use of in-car video, most of which relates directly to body mounted police cameras. Here’s an overview of some of the relevant law that privacy activists and police officers alike are now scrutinizing in the context of body cams.

Property Right to Exclusive Use

Washington State Law (RCW 60.63) gives individuals a property right to the exclusive use of their own “name, voice, signature, photograph, or likeness.” This law provides for Superior Court injunctions or financial liabilities of the greater of $1,500 or actual damages for infringements of this right of privacy.

In other words, a police video clearly depicting a person on video – for instance reciting their name, date of birth, and address – would normally be considered private in most circumstances under RCW 60.63 unless some explicit transfer of that property right to the police agency were also obtained. Exceptions include the use of the likeness “in connection with matters of cultural, historical, political, religious, educational, newsworthy, or public interest.” The law has been cited by public employees seeking an injunction to withhold their employee photographs under Washington State Public Records law.

It is likely that the courts would hold that newsworthiness or public interest will exempt the recording of most police body video by default, but the release of that police video to third parties complicates that assumption – especially in cases where no arrest took place or no citation was issued, undermining the newsworthiness of the video. The potential for exploitation of police video for entertainment purposes would in most cases conflict with this law and give subjects the right to sue before, or after, release if their faces were not obscured.

Dual-Party Consent to Audio Recording

Washington State Law (RCW 9.73.030) also has a fairly robust requirement that any audio recording of a private conversation must accompany an announcement that the recording is taking place, or else be protected by an implicit consent to record — such as presence in a public place or presence at a newsworthy event — or exigent circumstances in the case of police who are trying to investigate kidnappings or potentially lethal crimes. While notification is likely to be a low hurdle to initiating most recordings, and most criminal encounters with the police involve inherently newsworthy events, not all police encounters with the public involve criminal citations or arrests.

(Editor’s note: The state Attorney General recently decided that police do not have to ask permission to use body cameras to record their interactions with the public in most circumstances.)

Officer Discretion

Because police cannot predict which encounters will result in an arrest or an assault, a tendency to record any and all encounters to serve officer safety will prevail. This tendency to record more often than not raises significant issues around notification and its effects on witness cooperation with police. The likely solution to this tension between officer safety and witness cooperation will be officer discretion in whether the video is running or not at any given time. For advocates of the Michael Brown Law, this officer discretion is precisely the site of significant abuse of the public trust. Seattle saw this in August 2010 when former SPD officer Ian Burk shot and killed John Williams just out of view of his dash mounted camera.

Public Records and Common Exemptions

After police agencies have collected a video recording of a person, from any source (their own equipment or private industry), that record becomes a public record under Washington State’s Public Records Act (RCW 42.56). Whether it can be withheld by police will generally rely on whether it is part of a current, ongoing investigation or whether it is deemed to fall under some other provision, which narrowly and explicitly exempts it from disclosure. Police videos from drug investigations often use an exception to the Public Records Act; “Information revealing the identity of persons who are witnesses to or victims of crime or who file complaints with investigative, law enforcement, or penology agencies, other than the commission, if disclosure would endanger any person’s life, physical safety, or property.” (RCW 42.56.240 (2)) There are dozens of similar exemptions to police records, including an exemption for material which describes law enforcement techniques which are held to be secret to maintain their effectiveness.

Most often cited is the exception “Specific intelligence information and specific investigative records compiled by investigative, law enforcement, and penology agencies, and state agencies vested with the responsibility to discipline members of any profession, the nondisclosure of which is essential to effective law enforcement or for the protection of any person’s right to privacy.” (RCW 42.56.240 (1)) This exception has been successfully used to withhold phone numbers assigned by a cellular telephone carrier to police officers handsets, on the theory that the records if released would become intelligence for the requestor and enable interference with police communications. Videos which depict undercover officers obtaining criminal intelligence from unwitting informants would undoubtedly fall under this exception.

The Cost of Processing Public Records Requests

Police agencies in Washington State have significant and well-tested exceptions already in place to allow them to withhold videos which would violate privacy (http://www.mrsc.org/subjects/legal/prd.aspx). The sticking point in policy terms seems to be the budget that agencies want to devote to processing public records requests. Video takes a long time to review, and for public records purposes must be reviewed by a person well trained in public records laws. As most police agencies are forced to reduce budgets, public records costs have become a routine complaint to the legislature each year as agencies argue for more, and more restrictions on public records access. The estimate mentioned earlier of taking four years to review and release just six months of collected video is based on a typical records response strategy of taking only one hour per day to review any given records request, working through each request in turn and releasing records in installments, in the hopes that requestors will become bored and abandon the balance of an incomplete response. That abandoned response represents many hours of effort saved, in the end.

Police Union Opposition

If an agency really wants to put the brakes on a video release, they can cite the requirement of third-party notice prior to release, which can throw the request into the courts for injunctions by those third parties. This can add months to a release timeline and raise the costs to the requestor well beyond the budgets of most individuals. This is especially true where the subjects in the video are the members of police unions opposed to the political programs of the requestor or her organization. Police video will never be as transparent to the public as it will be to police administrators and managers. This is one of the main reasons that some police unions oppose the technology, and demand that it be part of labor negotiations prior to implementation.

Coming Soon: Live Streaming, Facial Recognition, Big Data-Mining

Today’s video technology generally requires lengthy and regular data downloads, archiving and cataloging of the video files for later retrieval and use, and eventual destruction after a time set in state law or department policies. The future of this technology, however, is moving toward live streaming video for dispatch and intelligence use. The intermediate step is the archiving of wireless video and audio by the officer’s patrol car, so that even in the case of an officer’s death or kidnapping, evidence will still exist to show investigators who it was that took an officer hostage and left his vehicle behind.

Both of these future uses of body worn video open up questions around how data is encrypted and transported to keep it from becoming a remote view into police operations for the wrong eyes. They also raise questions about how much video intelligence and facial recognition will be integrated into police departments which already use automatic license plate readers (APLR) to catalog nearly every vehicle on their patrol routes today.

The technology to use machines to sort video data automatically, and produce very large data sets about the movements of persons not under individualized suspicion has already been seen in the APLR data set released by the City of Seattle in 2013 in its ongoing program. The Wifi Mesh Network deployed downtown by the Seattle Police Department was recently shut down in view of public concerns expressed about its use for monitoring anyone with a Wifi-enabled smart phone, whether on foot or in a vehicle, anywhere in downtown Seattle.

Hemisphere: Broad Location Surveillance

But this kind of broad location surveillance already exists under public-private programs such as AT&T’s Hemisphere Program, available to Seattle gang detectives and the Seattle-based Washington State Fusion Center.

Hemisphere lets officers search several years of location data for any cellular telephone which at some point speaks through an AT&T switch. In most cases it reports the present position within about an hour of the request. It can even locate the unknown new phone number for a user who destroys his old phones to avoid detection, by tracking what phones that user calls from their new number. The future of these kinds of big data applications may escape civil society regulation by remaining in private industry, including body cameras on convenience store clerks, sales persons in the mall, and utility employees.  Once private industry has compiled such records, existing laws allow police to demand these business records, and in many cases they will be sold, or even given to agencies voluntarily.

The Accountability Challenge

The core question of police accountability is not solved by body worn video which is controlled by police departments, because the core question in any system of accountability is whether that system is truly adversarial. No one would expect a criminal syndicate to investigate itself, evaluate whether its henchmen and associates had followed policy, and then issue a report to the public that it was going to continue committing crimes after a three-hour class on sensitivity to cultural issues surrounding the use of force on developmentally disabled children. Yet that is exactly what many police use of force cases represent to the skeptical public which judges their credibility, and decides that it might be a better idea to “Burn this B—- down.”

Independent Custodians: The Court System?

To establish and maintain credibility, any system of police accountability has to be independent of those being held to account and at least periodically find that police use of force is not justified. For that reason, I don’t think that police body worn video or dash mounted video, should be controlled by police departments. If we’re going to keep our current legal system, the only remaining sensible alternative would be to have the court system handle such data as a custodian of records, just as they already are when cases are brought to trial. The technology to do this wirelessly exists already, and the security protocols for handling the most sensitive categories of personal data are already well established within the courts.

What about Discrepancies with Written Reports?

Not addressed in most examinations of this issue is what will happen to written police reports when they start being routinely compared to police video and found wanting. In the Rodney King case in 1991, the discrepancies between the written police report and the third-party videotape those officers did not know about was part of the spark of outrage when a Simi Valley jury exonerated four officers in a State trial of the case. Two of the officers were later convicted in a Federal civil rights trial and sentenced to 30 months in prison, but the first trial’s outcome led to 54 deaths, 2,383 injuries and more than 13,200 arrests as enraged residents rioted for a week.

Related info:

http://law2.umkc.edu/faculty/projects/ftrials/lapd/lapdaccount.html

http://www.cji.edu/site/assets/files/1921/police_reporting.pdf

How Is Video Interpreted, and By Whom?

The expectation is that video will clarify what happened, but the truth is that police see their use of violence very differently than the public sees it. Video and photography is not the objective truth, it’s always a mere representation of it – limited by perspective, the angle the camera faces (or does not face), when the video is recording (or is not recording). Police body worn video will always focus on what the person they are facing is doing with their body, not on what the officer is doing with theirs. In many ways it will raise more questions than it answers, and tend to show its subject in the worse light than the officer. Officers often bristle at public cameras facing them, because they know this. They are trained to be in control, and they can’t control the camera unless it is theirs. That is why third party video will still be an important activist tool well into the future.

 

The Risk of Normalizing Violence

Body worn cameras might also have the unwanted effect of desensitizing whole generations of juries to the meaning of interpersonal violence, as police trainers explain that attacking “subjects” is routine when the “subject” fails to hear an order, or doesn’t move fast enough for the officer making it. Public witnesses who view the same video without police cultural translation will come away with a very different perspective on the same images.

Afterward: The Uncertain Conclusions of the Rialto Study

A recent California study found that body cameras were associated with a reduction in Rialto’s police use of force by as much as 50%. Many media sources misreported that citizen complaints dropped by 90% as well. In actuality, the total number of complaints during the 12 month study period (3) was much lower than previous years, but two of those three were complaints against officers with cameras. The author of the study wisely stated that “we were unable to compute a treatment effect as planned, since the overall reduction was so large that there were not enough complaints to conduct any meaningful analyses.” The prior three years had 36, 51, and 28 complaints. Changes to the Department’s complaint process were not discussed in the study so cameras could not be isolated as the causative factor in the overall reduction of complaints. Media coverage of the study was likewise not discussed in the study and also could not be evaluated for causative effect on complaints. SOURCE PDF

 

 

 

 

Police Body Cams Are Coming to Seattle

“Before deploying surveillance tech, we MUST have fundamental protections for privacy AND a way to release public records.  ” — @SeattlePrivacy tweet, Nov 26, 2014

Public and official calls for policy body cams

If you’re reading this, chances are you know that 18-year old unarmed Mike Brown was shot and killed last summer by police officer Darren Wilson in Ferguson, MO, and that a grand jury decided last week against indicting Wilson. And you probably know that Mike Brown’s family is calling for body cams on every police officer in the US. And that today, the police officer who strangled Eric Garner on video was not indicted by a grand jury on Staten Island.

Two days ago, President Obama asked Congress to budget for 50,000 body cams for US police officers and $263 million dollars in training.

Here in Seattle, Seattle Police Department has been preparing for months to launch a body cam pilot for 16 officers this month. I asked SPD on Twitter whether the body cams will be reviewed using the process created by the new Privacy Advisory Committee. They told me to keep an eye on the SPD Blotter for more on this soon.

What’s the problem?

To me it seems that body cams have come to be framed as a quick, symbolic, technical cure-all for problems that have deep roots in our fears and values as a society. I tried to write a position paper for Seattle Privacy on the subject, but I couldn’t come down on a single clear position even to propose to the list.

In the current context, here are the contradictions and puzzles as I saw them:

  • Every encounter with an officer represents a huge potential for invasion of privacy.
  • Evidence shows that use of force complaints plunge spectacularly when body cams are deployed.
  • Police officers have been documented turning off their body cams before killing people.
  • There is an urgent need to take action to protect all people, but especially black people, from killer cops.
  • Video evidence of police killing unarmed, unresisting black people exists, including most recently at the time of this writing, Eric Garner, yet the weight of this evidence doesn’t result in disciplinary action. (A grand jury will consider indicting the killer of 12-year old Tamir Rice, also caught on video.)
  • The statistics site .538 reports that police kill as many as 1000 people a year.
  • Police video creates public records that currently cannot be adequately redacted and produced for public consumption in a timely manner.
  • As this tech evolves, and cameras are integrated, as they surely will be, with real-time facial recognition, this tech designed to protect people has the potential for giving police more power, ultimately becoming, effectively, mobile eyes and ears of the surveillance state.

With these issues swirling in my head, I asked the list for other people’s thoughts. The ensuing discussion helped illuminate both the potential value of body cams for police, and their dark side.

The value of body cams

Positive comments on body cams focused on their potential for improving police accountability, reducing excessive use of force, and exonerating people who are wrongly accused. Existing privacy protections were raised, and the advantages of cams on cops over cams on polls.

Posters who favored body cams for police talked about their proven effectiveness in reducing use of force complaints. As one said, “The net increase in accountability is a big win for the public, and there’s a small decrease in privacy for the public, and a large one for officers.”

Another poster spoke to the need for voices of people of color, people with low incomes, and other often unheard people to be heard: “I think it’s important to highlight that some people (e.g. #BlackLivesMatter protesters) feel a sense of urgency because these cams–by their very presence–drastically make cops less prone to violence and people, particularly black people, are being shot every day.” This poster acknowledged  privacy concerns, but came down on the side of moving quickly: “I don’t think it’s fair to overly delay body cams and demand a “perfect implementation” while people are killed.”

Videos recorded by police officers can help to exonerate the innocent. One poster spoke “from the perspective of having been wrongfully arrested and ultimately exonerated by police video that was initially withheld” from them. “Without the neutral record provided by audio/video recording, the version of events that goes into the public record is the narrative offered by the authorities.” Another poster added, “Too many people dodge a life sentence because of video footage. In my view, if paired with algorithmic transparency practices, the downsides of body cams are small.”

Some felt that the most significant privacy concerns are already taken into account by existing legislation formulated to address cameras and audio recording in police cars. Washington state law includes provisions to safeguard the privacy of people who are captured on law enforcement recordings. If the release of a public record serves no public interest, and would offend a reasonable person, it is exempt from public disclosure. One poster said, “Talk by law enforcement agencies of having to release footage from ugly scenarios, such as Domestic Violence victims inside their homes, is purely fanciful. Such records are already exempt, but some agencies are using these scenarios as a smokescreen to avoid accountability for themselves.”

One interesting commentary came from a poster who would far rather have cams on police officers than mounted on poles: “To me the cop cam or cop car cam is attached to a badge number, license plate/VIN number, etc. and that hopefully provides traceability and accountability. Cams on walls, in buildings and wherever else – who knows where the data goes, how long it’s kept around and who has access to it?”

The dark side of body cams

People who were skeptical of the value of body cams focused on privacy and surveillance concerns, the potential for their misuse by officers, the potential for body cams being paired with other technologies, and questions about the claims made about their efficacy.

One recurring theme was the absence of a solid foundation for protecting privacy: the absence of clear policies on auditing, metadata retention, storage and access policies that individual examples can be evaluated against.

For example, “There’s no reason that the default setting to video footage from cameras is ‘public’,” wrote one poster. “After we correct that problem and provide a legal right of privacy for citizens (which includes 911 calls), then we can talk about the problems we might want to fix with technology solutions that capture more data. And about reasonable retention practices to support them.” This view was seconded by a poster who wrote, “For me the principal is that the details of how the information will be used, released, stored, destroyed etc is just as important as the collection itself. It is not an afterthought, or an unintended consequence, and no body cams should be used until the set of usage processes has been built and made public.”

And the privacy concerns are very serious, one poster wrote: “…whether we are talking about recording in people’s homes, mugshot style extortion by private actors, or sex workers (see the recent stripper business license PRA request here in Washington).

The use of body cams for widespread surveillance, especially in combination with other technologies, was raised as a potential unintended consequence of deploying body cams on officers.

One poster wrote, “I’m concerned about the combination of police body-cameras with facial recognition software. There is no legal impediment to facerec processing of all body-camera recordings. When that’s combined with location information, it is a dramatic change in the amount of personally identifying information (PII) collected on the public by police. Even if the police don’t do it themselves, if the video is available through public disclosure, then others can run it through the same process. Let’s also remember that SPD is looking at a 3rd-party video storage system (cloud storage), which puts the video within easier reach of November Sierra Alpha and Friends.”

This view was seconded, “Of particular concern is the use of footage for fishing expeditions (especially if used in conjunction with facial recognition tech).”

Other concerns included the problem of officer control of when cameras are off and on, how redaction is managed and by whom, how footage should be used if it is taken, and even whether is it useful in criminal investigations or prosecutions at all.

“The cameras are turned on subjects of law enforcement inquiry, not the agents themselves. Video is often quickly obfuscated as soon as there is a physical altercation. There are countless examples of crystal clear video footage not resulting in real disciplinary action,” one poster wrote.

Furthermore, under most proposed policies so far, police can choose when to record and when not to. When there are policies in place, there typically is no provision for enforcement of those policies or consequences for ignoring them. One poster explained:

“Current PRA jurisprudence permits police to redact or withhold sensitive videos. This has been pushed by some proponents of the technology (including vendors, I believe) and I’ve yet to see a convincing analysis of the case law. I’m not sure I would want to concede that police have the right to redact these videos or withhold them, as there are far-reaching implications to this interpretation that might undermine government transparency. I’m of the opinion that the footage should only be used for accountability and oversight purposes, and should not be permitted to be used in furtherance of criminal investigations or prosecutions.”

Analysis: Metadata-Auditing Functionality Essential

Everyone who contributed to this discussion acknowledged an urgent need to address the problem of police brutality. Whether body cams play a part in the right way to do it is not something we can agree on. Our opinions range from the view that all police officers should wear these devices immediately, to the position that this whole conversation is premature and should wait until we actually have privacy foundations in place.

An area where we did find consensus was that auditing capabilities must be build into both the devices and the processes where they are used. “Strict technical features and audits should be required to ensure that the accountability purpose of the technology is preserved while preventing any mission creep into surveillance purposes. A comprehensive metadata trail should be mandatory,” wrote one poster, and another agreed: “The technical systems used to manage these recordings must maintain complete logs detailing their entire life cycle, including creation, use, retention, distribution, and destruction. Without this metadata, the stewards of these recordings can be selective about what footage they admit to having recorded, or not recorded, and what else was or was not done with it.”

Conclusion: Make this a REAL pilot

Given that the Seattle body cam pilot is going ahead, and that it is a pilot, we call for the City of Seattle to include studying and addressing the concerns raised above as a part of the pilot process.

The residents of Seattle have a well-grounded lack of trust in SPD, as manifested in the DOJ settlement over excessive force by SPD and poor policies and practices. Cameras may be a technological aid in addressing these problems, and it’s important to remember that they’ll be embedded in a system which has a hard road to climb back to trust. It may be that they aid in that process, and it may be that it’s just too hard to handle right now.

We call for the involvement of the Privacy Advisory Committee recently constituted by the city as part of its Privacy Initiative to address privacy and data retention issues of exactly this nature. The use of body cams for police officers must adhere to the Privacy Principles that are currently under development by the Privacy Advisory Committee. Whether the city moves ahead with deploying cameras to all officers MUST depend on the successful implementation of the auditing technologies and processes described above during the pilot.

Recommended supplemental reading: