The Use Of Body Worn Cameras By Police Officers: A Threat To Fundamental Liberties?
"Now I do not understand
Why God don't protect a man
From police brutality.
Being poor and black,
I've no weapon to strike back
So who but the Lord
Can protect me?"
― Langston Hughes
The United States have been shocked in 2014, as a young African American was shot by police forces. After that, thousands of protestors demonstrated against police brutality and for equality.
Here, the court must rule based on hearings, which aren't the most conclusive evidence for such a complex case. Evidences based on video could have played a role either for the officer's defense or for the prosecutors.
In France, where citizens are basically skeptical about police forces, the "yellow vests" riots opposed citizens to police officers in violent encounters. The country started debating passionately about police violence.
This context led governments across the globe to outfit police forces with so-called "body-worn cameras", which are meant to record what is happening in critical situations. Some argue that this could make it possible to detect/prevent police violence and so protect citizens from abuses. This tool would therefore improve the interaction between police and citizens. This leads to many legal issues and is likely to infringe upon fundamental liberties.
Is it possible to uphold fundamental liberties while still using BWCs?
Mostly on the basis of France, this article will focus on the functioning of BWCs, their purpose, and it will elaborate on the police's accountability. After exposing the legal framework in this matter, the article will analyze how BWCs can be an actual threat to civil liberties, and how to deal with it.
Functioning And Purpose Of Body Worn Cameras
Functioning - BWCs are tiny and mobile cameras equipped with a microphone that are worn by police forces on duty. They can store data internally, so that they can record audio and video footage. Usually, BWCs are worn on the chest, but they can also be located on the head or on the shoulder.
Since BWCs are worn with a harness, it is possible for the officers to record in many angles everything happening in their surroundings. Also, BWCs are programmed so that the thirty seconds prior the pressing of the button are stored as well. This is meant to show the tensed situation that led the officer to make use of the BWC. In this sense, the BWC are equipped with black box functions, as they prevent, monitor live and serve as an evidence.
Purposes - Protecting Police Officers Against Assaults - BWCs became essential and diffused in some countries, particularly in France due to the Yellow Vests riots, which ended to assault against policemen. With BWCs, citizens are aware their faces are recorded, and this can lead to less violence against police officers.
Protecting Citizens Against Police Violence - Knowing that they are under the spotlights, policemen are forced to stick to protocols and are driven into compliance, even more if they know everything's on record.
In the US, the use of BWCs has served as a tool to teach. Indeed, supervisors reviewed the footage and provided so for constructive feedback on the way policemen acted in the given situation. Some law enforcement agencies are using the footage to gratulate officers showing good performance and behavior, and also for training purposes.
Body Worn Cameras as a proof of evidence - Since French citizens would use their smartphone in many riots/demonstrations to record police abuse, recordings issued by BWCs can therefore be used in the same way as a proof of evidence. By documenting encounters between police and citizens, the footage can serve both the defense and the prosecution.
Six recordings have been used as evidence in front of court in cases of assault to police agents in France. Therefore, the footage issued by BWCs can be used to provide proofs of the compliance of police officers to protocols, and so serve their defense.
However, it's possible to use the footage as a proof of evidence based on their authenticity, reliability and admissibility.
Body Worn Cameras Bringing Trust Back In The Police
Police Legitimacy - The police is a state institution that's needed to maintain law and order. Officers are therefore legitimate to proceed to controls in their duty to prosecute this mission. They can use force when needed, based on this legitimacy they get from the state. But this legitimacy still needs to be accepted by citizens, being constituents of the democratic system. Also, this mission requires citizens to accept the authority of the institution, and so comply with its rules obey.
Human behavior tend to improve if individuals know they can be caught doing wrong. So BWCs could provide for better behavior of police forces, which would lead to a stronger acceptance of their legitimacy to enforce rules.
To elaborate once again about the videos made by protesters with their smartphones, the footage issued can challenge the officers' legitimacy and so undermine their credibility. Therefore, BWCs could, by controlling the use of force by the agents, be a safeguard and so strengthen credibility.
The police is ruled by a 'concept of command', which includes a three-dimensional structure combining competence, authority and responsibility. However, control's important to serve supervision, synchronization and monitoring of the progress.
Police Accountability - The use of BWCs shall improve the relationship between police and citizens. This can come true if citizens trust police forces, mostly that the officers won't abuse their force. Also, it's important that citizens know that they can make officers accountable for their actions. BWCs can bring this trust back by helping citizens having a base on which they can argument that the officer didn't comply to the law in a given situation. The use of BWC have a positive effect on both officers and citizens' behavior.
A Need To Improve The Transparency of Policing - BWCs can bring to light behaviors, acts and words that wouldn't have been scrutinized if these tools hadn't been being used. In this sense, they act as deterrent mechanisms, as they expose these bad actions. However, the capacity that's let to officers to turn it on/off as they wish is decisive in this regard.
Legal Framework
In France, the legislative framework ruling the use of BWCs is builded on the Intern Security Code, the GDPR and the recommendations of the CNIL.
The CSI prohibits filming the interiors of residential (private) building and their entrances. In some cases, private spaces can be recorded. However, this can be done only after the CNIL's authorization.
Furthermore, citizens must be duly informed (ie. clearly and permanently) about the BWC and the data controller. That's relevant, since the French Penal Code prohibit from recording without prior notice and consent of the individuals on the tape.
The legislator has regulated the installation of cameras on public areas because it raises many questions about respect for individual freedoms. A maximum retention period for recordings of one month has been decided.
The CNIL recommends to use this analogically to BWCs. The right of information and of access to the recordings concerning them, thus to verify their destruction within the prescribed period, must be granted.
Also, methods of control of these devices, prior to their installation (through prefectoral authorization) and during their implementation (control by the CNIL) must be introduced.
Threat To Fundamental Rights
Right To Privacy - BWCs are raising privacy issues, since consent can be counteracted in national security matters. The duty to inform and consent as well as the time and content of the footage, the storage and access are increasing threats raised by the use of BWCs.
Privacy Of The Officers - BWCs firstly interfere in the agents' privacy, as they are recorded on duty. This can be justified in the sense that citizens have to be protected from police abuse. Still, a trade-off must be found between the protection of individuals and the privacy of the agents monitored during their work.
Privacy Of Individuals - The use of BWCs interferes also into citizens' privacy. The accountability of the officers must be ensured, as well as the need to protect their physical integrity. So in a way or the other, citizens' privacy might be infringed for this 'greater' purpose.
BWCs are likely to film public areas as well as private places, all within the framework of the same operation, depending on the circumstances of the intervention presiding over the use of these devices. Moreover, they're likely to film indifferently everything in their field of vision.
The possibility of filming private areas raises important questions: it might infringe on the privacy of the persons concerned. Such interference by the public authority therefore requires substantial safeguards to ensure the proportionality of the system.
Freedom Of Speech - The use of BWCs can also lead to some issues regarding freedom of speech. During the Yellow Vests riots, protesters demonstrated against the government and the president. But many of them would stop demonstrating or at least being loud because they noticed the BWCs and were afraid of consequences. The fear infringed in this way their freedom to speak out loud their wishes and anger.
In addition, BWCs are frequently equipped with microphones to record the words spoken by those being filmed. The collection of such information isn't explicitly provided for in the CSI.
Freedom Of Reunion - BWCs can be a threat to the freedom of reunion. Indeed, if people want to protest, they need to be loud and speak up their mind. Infringing on their freedom of speech makes it useless to unite themselves to demonstrate.
Also, the fear of being on tape makes protestors softer. In France, where there's a dynamic and virulent demonstration culture, not being able to truly show the own anger on the street is sufficient to make people stay at home. In this way, freedom of reunion is indirectly impacted.
In Germany for instance, the fact not being able to truly speak up your mind in a crowd in the context of a demonstration is enough to characterize a direct infringement in the freedom of reunion of the participants.
How To Limit The Impact On Fundamental Rights
Duty To Inform And Consent - According to the GDPR, if the consent isn't required, there's still an obligation of information about the purpose of the footage, the data controller and about the BWCs recording.
In France, the police must orally inform that they are recording the scene, so that citizens are aware that the cameras film but also record the oral exchanges. Also, the BWC must be clearly visible.
It must be ensured by means of an appropriate mechanism that the persons filmed are fully aware of the recording and, consequently, of their possibility of exercising a right of access, since these are essential guarantees.
Time And Content Of The Recording - It must be clear which categories of individuals are being filmed, to prevent recording people that don't necessarily need to be recorded.
Also the circumstances of the recording matter, because the infringement won't be justified the same way whether it takes place in a demonstration or during a control. Indeed, some safeguards have to be implemented. Is it really necessary to record a routine control? In the other way round, the Ferguson shot took place during such control.
Furthermore, it's essential to determine the degree of freedom allowed to policemen for switching the camera on/off. Indeed, most of the BWCs record thirty seconds prior to the triggering. Does it mean they record non-stop? It's important to regulate in which situations the officer can choose. There's a need to balance. In France for instance, the police can switch off recording at their discretion.
The risk that officers edit the footage live in case they aren't obliged by protocols can be mitigated by tracking how many times they switch it on/off. In the other way round, the officers' privacy is here directly correlated to any abuse in the mitigation.
Storage Of And Access To The Recordings - There must be a limited scope of time regarding the data retention period of the recordings.
Concerning the access, there must be different rules regulating whether the data is accessed by the police, the individuals filmed, third parties or judges.
Officers can be allowed to review their own recordings. But most of the time, the footage is stored in a central database, letting them access the video only from their smartphones, but without the possibility to edit or delete it. Is it acceptable though that the footage can be accessed so easily by the one who recorded it?
According to the data protection framework, citizens have a right to access the footage in which they appear. This must also be balanced with the right of other citizens who happen to be in the footage to protect their own privacy.
Also, since the recordings are used as a proof of evidence in criminal proceedings, the question arises wether the access by the data subjects must be granted to their representatives only or directly to them as well.
Conclusion
This article aimed to elaborate on the legal issues raised by the use of BWCs. The legal framework is still very thin in this matter.
A balance must be found, since BWCs aim to protect people from arbitrary use of force and abuse. This greater purpose justifies infringements in Human Rights of both police officers and citizens. Still, it's possible to combine these tools with an adequate protection of fundamental liberties.
Additional literature:
Ariel, B. "Increasing cooperation with the police using body worn cameras." Police Quarterly 19 (3), pp. 326-362, 2016.
Ariel, B. ; Farrar, W. A. ; Sutherland, A. J. "The effect of police body-worn cameras on use of force and citizens' complaints against the police: A randomized controlled trial." Journal of Quantitative Criminology. 31 (3), pp. 509-515, 2015.
Ariel, Barak ; Sutherland, Alex. "The effects of body-worn cameras (BWCs) on police and citizen outcomes - A state-of-the-art review". Policing, pp. 672-688, 2017.
Balmaks, A. ; Kelly, J. ; Smith, J. "Strategic Command and Control Lessons - Scoping Study." Deakin West, Noetic Solutions Pty Limited, 2013.
Coudert, Fanny ; Butin, Denis ; Le Métayer, Daniel. "Body-Worn Cameras For Police Accountability : Opportunities And Risks." Computer Law and Security Review, 31, pp. 749-762.
Coudert, Fanny ; Gemo, Monica ; Beslay, Laurent ; Andritsos, Fivos. "Pervasive Monitoring: Appreciating Surveillance Data as Evidence in Legal Proceeding." 4th International Conference on Imaging for Crime Detection and Prevention, 2011.
Crabbe, R. "The Nature of Command." In Pigeau, R. ; McCann, C. "The Human in Command: Exploring the Modern Military Experience." New York, Kluwer Academic / Plenum Publishers, pp. 9-16, 2000.
Flight, Sander "Opening up the black-box: understanding the impact of body cameras on policing." European Law Enforcement Research Bulletin, Special Conference Edition Nr. 4., 2019.
Lum, C. M. ; Koper, C. S. ; Merola, L. M. ; Scherer, A. ; Reioux, A. "Existing and ongoing body worn camera research: Knowledge gaps and opportunities". Fairfax, George Mason University, 2015.
Morgado, Sónia M.A. ; Alves, Ricardo. "Core Capabilities: Body-worn cameras in Portugal". European Law Enforcement Research Bulletin, 2019.
Sunshine, J. & Tyler, R. "The role of procedural justice and legitimacy in shaping public support for policing." Law & Society Review, 37 (3), pp. 513-547, 2003.
Legal sources:
Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation).
Decree of the French Ministry of Internal Affairs, "portant définition des normes techniques des systèmes de vidéosurveillance".
US Department of Justice. "Implementing a Body-Worn Camera Program, Recommendations and Lessons Learned 2014:26-27 ». Community Oriented Policing Services (COPS), 2014.
CNIL, "Les caméras-piétons utilisées par les forces de l'ordre", Rapport d'Activités, 2015.
French Homeland Security Code (Code de la Sécurité Intérieure).
French Penal Code (Code Pénal).