By Gabrielle King
As recent news has indicated, there have been numerous instances of police officer shootings across the country. The circumstances leading up to these shootings have increasingly been questioned. With the theory of racial bias looming over these situations, individuals nationwide are searching to get to the bottom of these shootings to determine what actually transpired during these sometimes fatal, confrontations. Fortunately, a piece of technology has been introduced over the past few years to assist in this inquiry. Body cameras utilized and worn by law enforcement officers can give a unique perspective and first-hand look at what occurred. On the contrary, there are escalating concerns about the privacy of the law enforcement officers and individuals who happen to find themselves on the camera’s footage, including those who are recorded in the privacy of their own residences.
In the summer of 2016, approximately ten Illinois police officers filed a federal lawsuit after discovering that their wearable body cameras were permanently turned “on” for a period of approximately eight months. The cameras continuously recorded, including in the restrooms, breakrooms, and other areas where the officers had an alleged reasonable expectation of privacy. The officers claim that the footage resulted in “offensive and voyeuristic videos.” Chuck Goudie et al., Officers File Lawsuit After Body Cams Record Them Non-Stop, ABC7Chicago.com (July 14, 2016), . The officers, citing that they suffered an injury to their right of privacy, were justifiably humiliated by the resulting videos, after eight months of their daily, personal habits and interactions were recorded. There is debate over the phrase “reasonable expectation of privacy” and an individual’s right to privacy gets more complicated when they utilize a public restroom as opposed to a private bathroom inside their residence. Also, because police officers are considered public servants, they may have a lower expectation of privacy than most citizens. Nevertheless, because the officers were using the restrooms, unaware that their cameras were recording, it should be apparent that this was an invasion of their privacy rights.
While these wearable body cameras raise privacy concerns for police officers when the cameras malfunction or power on in inappropriate circumstances, there are issues with the technology when the cameras “power off” while they should have been recording. For instance, towards the end of July of 2016, a Chicago police officer fatally shot an unarmed African American. J. Weston Phippen, The Trouble with Police Body Cameras, The Atlantic (Aug. 2, 2016), . Wearable body cameras were mainly introduced to address these exact types of incidents. Here, the officer was wearing a body camera at the time of the shooting however, his body camera powered off at the time and it failed to capture the exact moment in question. Because of these discrepancies, there is a need for reform and development in this area of technology. On one side, the cameras should not be programmed to remain on at all times, as this could be a possible invasion of officers’ privacy. However, on the other side, if the cameras continue to malfunction by powering off in the moments that we need them the most, seeking justice and determining if an officer involved shooting was justified is just as difficult as it was before.
Investigating further into the privacy issues raised by wearable body cameras, one can find a discussion about filming inside the homes of citizens when officers lawfully enter a residence while their camera is active and recording. The Fourth Amendment of the Constitution protects citizens against unreasonable searches and seizures, grants citizens the inherent right to privacy, and protects their right to feel secure, especially in their own homes. Because citizens have a reasonable expectation of privacy within their homes, these wearable body cameras pose a threat to their privacy when officers enter because they essentially surveil the inside of the residence. Moreover, if a police officer lawfully enters a residence, should they be required to obtain a warrant before accessing the video footage that their own camera recorded? What an officer can physically observe in plain view with his own eyes may not be as vivid and detailed as video footage caught by an advanced camera. Therefore, it is possible that things unobserved by the officer in an individual’s private residence may have been captured by the body camera. Evidently, these are the issues that we are facing today. Several cities across the United States have implemented or drafted specific limits on when officers can record with their cameras. For example, there are proposals that allow a police officer to stop recording if a victim requests not to be recorded. Additionally, the American Civil Liberties Union has proposed a model provision that requires officers to ask the occupants of a home if they want the officer to stop recording prior to entering. Police Body Camera Policies: Privacy and First Amendment Protections, brennancenter.org (Aug. 3, 2016). Individual states and cities may have to alter their protocol or implement new statutes addressing this issue because of these possible Fourth Amendment concerns or violations regarding the use of police body cameras.
There are privacy issues on both sides of the debate as well as technical and legal concerns with making the determination of when the cameras should be on and off. There appear to be specific times where it is appropriate to have the body camera turned off, being cognizant of individuals’ privacy, and times where it is crucial to have the camera recording, like during these frequent officer involved shootings. It will be important to find a reasonable balance while ensuring that these shootings and confrontations are recorded.
Student Bio: Gabrielle is a Staff Member of the Journal of High Technology Law. She is currently a 2L at Suffolk University Law School. She holds a B.A. in Politics and Law from Bryant University.
Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.
