Invasion of Privacy or Public Safety Measure?

By Paul Anderson, Larry Frankel Legislative Fellow, ACLU of Pennsylvania

Police Body Camera

The recent tragedies in Ferguson, Staten Island, Cleveland, Los Angeles and now Madison have thrust questions of how law enforcement interacts with members of the public into the national spotlight. One issue of specific focus has been available technologies that would—ideally—allow for greater oversight and accountability of officer interaction with the public. Body-worn cameras that record interactions made during an officer’s shift have advocates from both the police and civilian worlds. Members of the public believe that recording of encounters will better document potential police misconduct and provide greater transparency over state actors, and some parties in law enforcement envision body cameras can be valuable tools to increase public trust in the police.

Police body cameras are an admittedly thorny issue for the ACLU because of the potential for placing two equally compelling interests on a direct collision course. The aforementioned desire for greater accountability of state actors is offset by privacy interests of individuals who are recorded. Any body camera policy, whether imposed by the General Assembly or implemented at the municipal level, must delicately balance these interests.

At the outset, the police should have a near-zero discretion policy in turning off the cameras during encounters with the public. The only exceptions should be for conversations involving crime victims or witnesses. Too much latitude in powering off the cameras will inevitably lead to manipulation by some officers, as shown in a recent excessive force lawsuit in St. Louis.

In addition, all subjects should be made aware that their interactions with police are being recorded, but higher standards should govern in certain circumstances. For example, a recording inside a person’s home should be permitted in a non-emergency situation only with the consent of the residents or pursuant to a valid search warrant. Similarly, policies should accommodate crime victims and witnesses who request that a camera be turned off before divulging sensitive information.

The actual recording of encounters is not the only aspect of body cameras that raises significant privacy concerns. Storage policies must also be especially sensitive of individual privacy interests. Retention policies, like all other components of a comprehensive policy, should be directed to promote government oversight or other public interest. The interest in holding the state accountable is much lower when there is no evidence or accusation of police impropriety. Therefore, videos without any public or investigatory interest should be deleted as soon as is feasibly possible. Recordings that either involve significant police escalation or involve an incident that a civilian complains about should be retained longer, even if they are not being used in any criminal proceeding. The social interest in these recordings is much higher, meaning they should be retained and made available, in redacted form if necessary.

Finally, it is important to remember that use of body cameras is, at bottom, designed to permit greater public oversight of government behavior, not vice versa. Therefore, any legislation should include sweeping prohibitions against the use of body cameras as a general surveillance tool. The potential for misusing cameras to secretly record First Amendment activity- such as political protests or religious activity- is significant enough to create a demand for policies that explicitly disavow this type of monitoring.

Body cameras are not a panacea. In the Staten Island incident, a bystander captured video evidence of an officer using a chokehold on Eric Garner that was in violation of NYPD policy. Even though the coroner ruled Garner’s death was a homicide caused by compression of the neck and chest, a grand jury still declined to indict the officer responsible. Given deeper questions of structural inequality underscoring the current policing landscape, it is unlikely that increased recording of encounters alone will sufficiently restore public trust. However, body cameras can provide a potentially useful additional level of government oversight, as long as any legislative or administrative policies are developed with a clear and principled balancing of two crucial—and occasionally competing—interests.

Paul Anderson is the Larry Frankel Legislative Fellow at the ACLU of Pennsylvania and a third-year student at Penn State Dickinson School of Law.

Victory! PA House conservatives, liberals, moderates team up against expansion of DNA collection

By Paul Anderson, Larry Frankel Legislative Fellow, ACLU of Pennsylvania

Harrisburg Capitol

For the second consecutive legislative session, a bill that would greatly expand when law enforcement could collect your DNA has failed to pass in the state legislature. The bill would have invested a lot of additional money into the existing state DNA database, and more alarmingly, it would have required state police to collect DNA samples from individuals who were arrested for specific crimes, even if they were never actually charged.

The new collection would have been introduced gradually, covering only people arrested on suspicion of murder in the first year of implementation before expanding to felony sexual offenses in the second. By the third year, however, the mandate expands to arrestees of ALL felonies and certain specified misdemeanors. Even if an arrestee was never charged (let alone convicted) of the crime, the DNA sample would remain in the database unless the person filed a written request for removal and the request was granted.

We strongly opposed this bill. It almost goes without saying that everyone has an expectation that his or her genetic makeup will not be extracted and stored in a government database. To allow the police to collect and store DNA evidence even before charges have been filed violates this bedrock principle of privacy that is crystallized in the Fourth Amendment. (See – Our Work: In The Legislature)

Supporters of this bill got a win in the United States Supreme Court in 2013, when the court upheld Maryland’s arrestee DNA collection procedure as an adequate identification procedure. We—and many other groups and individuals—disagreed with the court’s interpretation of the Fourth Amendment and were incredibly cynical about the claim that arrestee DNA collection was primarily used for identification and not investigation, but because they ultimately interpret the Bill of Rights, our tactic had to change slightly. We were prepared to make a case that even if arrestee DNA collection is permissible under the Fourth Amendment, it still violates the search and seizure provision of the state constitution. The PA Supreme Court has articulated some scenarios where the state constitution affords a higher level of protection that the Fourth Amendment, but it can be a difficult argument to make and sell to legislators.

Fortunately, we never really had to make that argument. DNA collection expansion provoked strong opposition in the House, as numerous representatives expressed serious concerns about how this bill would encroach on people’s privacy. The opposition was truly bipartisan—members who could be described as very conservative, very liberal, or moderate all expressed their disapproval of such an extreme expansion of law enforcement’s power, and many of the representatives who helped defeat the bill in the 2011-12 session were willing to stand once again against the proposed DNA expansion. This opposition encouraged us greatly, and when it became clear that House Leadership was not going to act on the Senate bill, we were optimistic that the fight might be over.

In the final two weeks, however, the Senate revived DNA expansion by amending it into an unrelated online impersonation bill that the House had already passed. This was the Senate’s Hail Mary pass, as it hoped enough House members would be supportive of the online impersonation bill to overlook the DNA language that had been added.

Fortunately, our House allies came through for us again. After the bill passed the Senate, the House Rules Committee quietly removed the DNA amendment as violating the state constitution’s Single Subject Clause before there was any opportunity to debate the substance of the DNA amendment itself. With that, the House ended any fear that the arrestee DNA collection bill would pass this session.

The last two sessions have made it clear that there is definitely motivation within Senate leadership to expand DNA collection within the commonwealth, so we may have to fight a bill like this again next year. Hopefully, the failure to pass the bill in two consecutive sessions sends a strong message to the Senate that this is not a policy that the people of Pennsylvania support, but if the Senate remains insistent that this bill should pass, then those of us in Harrisburg next session will continue our efforts to lobby against this bill and any other proposed policy that would dramatically encroach on the privacy rights of Pennsylvanians.

Paul Anderson is the 2014-15 Larry Frankel Legislative Fellow at the ACLU of Pennsylvania and a third year student at Penn State Dickinson School of Law.