Body-worn camera systems (BWCS) are increasingly being considered and deployed by law enforcement. In some cases, the use of BWCS is cautiously supported by civil liberties groups as a means to increase law enforcement transparency. However, the effect of BWCS on privacy remains controversial, particularly when BWCS are used in connection with audio recording and facial recognition systems. The combination of indiscriminate video and voice capture and facial recognition programs creates the spectre of roving detailed surveillance.

Some might say that we are already beyond the tipping point for use of BWCS in law enforcement, given the adoption of BWCS by many police departments and plans for use by others. Nevertheless, Alberta Privacy Commissioner Jill Clayton has launched an investigation into BWCS after being dissatisfied with the lack of evidence of a privacy assessment by a local police service. It is too early to tell whether that investigation will have any meaningful effect on the implementation of BWCS in Canada. In this update on BWCS, we’ll take stock of where we are in evaluating the privacy implications of this rapidly advancing technology that is already jumping from law enforcement into other use cases.

BWCS – What’s the Motivation?

In some ways, BWCS are a cousin of the dashboard camera in a police cruiser. The idea is to capture law enforcement interactions with individuals. However, BWCS are portable. The systems comprise a relatively small and light-weight camera system mounted onto the officer’s clothing which can record video and audio and, in some cases, can upload that data to cloud storage. The camera does not capture the officer but has the advantage of filming the scene in a way that loosely approximates the field of view of the officer. Given their portability, BWCS are useful in capturing incidents that take place away from the patrol vehicle and better approximate what the officer is viewing. For this reason, BWCS are sometimes referred to as “point-of-view” systems.

There are a number of claims made in support of the use of BWCS, which were documented by Michael D. White in a literature review of BWCS research, titled Police Officer Body-Worn Cameras: Assessing the Evidence. Among the most frequently cited claims are that the use of BWCS increases transparency, reduces the number of allegations of excessive force, and creates evidentiary records that are useful in prosecutions. Some claims go further and suggest that these systems foster greater accountability and restraint in police conduct. Others suggest that these systems are even more effective than CCTV recordings in affecting the behavior of individuals. These claims are founded on the hypothesis that when the parties involved know that the interaction is being recorded, their behavior is altered and the situation is more likely to de-escalate, or not escalate in the first place. The theory is that this leads to fewer incidents of excessive force and more courteous interactions. However, others note that the decrease in complaints may simply be the effect of fewer spurious claims. Whatever the underlying reason, it is difficult to dispute that these systems have some utility in increasing transparency of law enforcement activities.

Indeed, increased transparency led one U.S. judge to order BCWS as a remedy for racial profiling in stop and frisks in New York City. In Floyd v. City of New York, 959 F.Supp.2d 668, District Court Judge Shira Scheindlin gave three reasons for ordering BWCS for the New York Police Department as part of a larger remedial order. Those reasons were:

• To create “a contemporaneous, objective record” against which to assess complaints of racial profiling.
• Overt recording would encourage lawful and respectful interactions on the part of the police and the individual being stopped.
• The recordings would mitigate the impression of individuals that the authorities would be more likely to believe the police when the only evidence is oral testimony.

Initially the City of New York contested the order but then moved to implement some of the remedial steps over the objections of the police union in a September 2014 pilot.

Even the American Civil Liberties Union has supported the use of BWCS. In June 2014, the ACLU called for the U.S. Customs and Border Protection Service to pilot BWCS and expand the use of BWCS to all enforcement encounters with the public, provided Customs and Border Protection implemented appropriate privacy protections. However, support of BWCS by civil liberties associations has been mixed. In Canada, civil liberties associations have been somewhat more wary of these technologies, having historically expressed skepticism over accountability claims used to justify BWCS. In addition, they have raised concern over the retention and use of the data collected by BWCS.

Privacy Concerns

In some ways, the privacy concerns of BWCS parallel the use of CCTV by law enforcement. The privacy concerns regarding the use of CCTV, like BWCS, are that:

• Anyone can become the subject of law enforcement surveillance simply by being within the field of view of the camera, irrespective of whether they have done anything to arouse a reasonable suspicion of wrongdoing.
• The medium allows for the integration of facial-recognition technologies and data mining, increasing the data held about individuals by law enforcement, regardless of their innocence of any wrongdoing.
• The field of vision of a camera can be misleading. What is occurring outside of the field of vision can be important to understand the context of what is occurring, thereby throwing claims of evidentiary value into doubt in some cases.
• Video can be overused without considering other less privacy-intrusive options that would be just as effective in achieving law enforcement goals.
• The intrusive nature of the recording requires strong privacy protections such as limited use, limited retention and strong security safeguards.

Some of these concerns were expressed by the Office of the Privacy Commissioner of Canada (OPC) as long ago as 2006 when the OPC issued Guidelines for the Use of Video Surveillance of Public Places by Police and Law Enforcement Authorities. These concerns remain relevant and have recently been repeated by the UK Information Commissioner’s Office in the CCTV Code of Practice issued in October 2014. The CCTV Code of Practice also addressed BWCS.

Although BWCS share many similarities with CCTV in respect of privacy issues, there are a number of differences. For example, BWCS can be used within an individual’s home or other locations where there may be a reasonable expectation of privacy. The use of BWCS inside a person’s home or during a bodily search could be highly intrusive. BWCS may also collect images of innocent individuals at a crime scene or accident scene in emotional or physical trauma. Although such images may also be captured by CCTV, the close proximity of a police officer to the individuals means that the images may be more direct and intrusive. Furthermore, the use of BWCS is not neutral. Typically, law enforcement officers have the ability to activate and deactivate BWCS while they are on patrol or investigating an issue. The officer has discretion (subject to any policies) regarding when the officer turns on the BWCS and who the BWCS records, which will be influenced by the officer’s training, perceptions and any biases.

The most potentially privacy intrusive uses of BWCS are when BWCS are combined with audio recordings or facial recognition. One of the significant differences of BWCS from CCTV is that BWCS will frequently be equipped with audio recording capability not only to film the interaction but also to record what is said during the interaction (as well as any audio in close proximity to the interaction). It is important to note, of course, that the use of this function may be affected by laws governing the interception of private communications. Some jurisdictions have two-party consent rules, such as the author understands is the case in California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Montana, New Hampshire, Pennsylvania and Washington. These laws generally require all parties to a conversation to consent. Other jurisdictions, such as Canada, only require one party to consent to the recording, although covert surveillance based on the consent of a participant may offend constitutional protections to be free from unreasonable search and seizure.

BWCS, if integrated with facial recognition programs, could become a very effective tool of law enforcement. As with CCTV, the potential exists for BWCS to be used to collect a vast database of images. However, unlike CCTV, the collection of the image during an interaction with law enforcement increases the potential for the person in the image to be immediately identified as a result of the individual self-identifying when asked.

As noted in the introduction to this article, the privacy issues relating to BWCS have come to a head in Canada with the Alberta Office of the Information and Privacy Commissioner (OIPC) squaring off with the Calgary Police Service (CPS). In 2012, the CPS tested a pilot project of 50 BWCS. In August 2013, the CPS announced it would be seeking to deploy the BWCS more broadly and, in a September 2014 CPS Commission meeting, the CPS revealed that it would deploy 550 BWCS by the end of this year. Upon learning of this news, the OIPC wrote to the CPS highly recommending that the CPS submit a privacy impact assessment and an access to information assessment to the OIPC. The CPS apparently did not do so. Instead, on November 3, 2014, the CPS announced that it “will become the first police agency in Canada to use facial recognition software as a screening tool for investigations and arrestee intake procedures.” The CPS has stated that officers’ BWCS will not “directly feed into” the facial recognition system and that police will not randomly scan, looking for individuals. However, in the pilot BWCS program, footage was retained for a minimum of 13 months and up to 25 years depending on the investigation.

In response to this news, the OIPC announced on November 5, that Commissioner Jill Clayton was commencing a formal investigation into the use of BWCS and facial recognition by the CPS. Notwithstanding having written to the CPS about these initiatives on October 2, the OIPC stated that “the Commissioner has not received any information from CPS about either initiative.”

Existing Policy Guidance

An issue that appears to be troubling the Alberta OIPC is that the CPS does not appear to be transparent with respect to policies governing the use of BWCS. For example, to date, the CPS does not appear to have made its policies on BWCS easily available to the public (at least that this author could find). In the UK, which has had a longer history of use of BWCS, the Body Worn Video Steering Group, made up of police agencies in the UK, have published guidance documents including a model sample policy document that contains the following privacy protective recommendations:

• Indiscriminate recording while on patrol is inappropriate. BWCS should be used only in the context of responding to or investigating a specific incident as a supplement to the officer’s written recording of professional observations.
• An announcement that the officer is using BWCS should be made to individuals at the scene of the incident.
• Collateral intrusion on bystanders should be minimized by restricting the recording to areas and persons necessary to obtain evidence.
• BWCS should never be used in connection with intimate searches.
• BWCS should only be used with consent when interviewing victims who are the subject of a sexual assault.
• Police officers must be sensitive to religious faiths such as situations when police have entered a home and a woman might not have a face covering on within the home.
• No images that have been recorded may be deleted on the discretion of the police officer.

The extent to which those recommendations make the jump across the Atlantic is an open question.

Future Applications

Canadians will be watching how the debate over BWCS unfolds in Alberta, including any recommendations that emerge from the OIPC investigation. However, the use of BWCS in the law enforcement is probably just the tip of the iceberg. The application of these wearable technologies is moving quickly into other applications. BWCS can be used to record healthcare procedures. BWCS is also a new tool for the “secret shopper” to test customer service experiences.