Privacy and Other Issues Presented by Body Cameras

Locke Lord LLP
May 11, 2015

Body cameras are becoming part of the uniform for certain professionals including police officers and service personnel. These cameras are more than an extension of dashboard cameras for law enforcement; they are more versatile and more likely to present privacy and intellectual property issues. Thus, any organization using or considering the use of such cameras should consider these issues, establish appropriate contractual covenants, establish internal policies governing the use of the cameras and the handling of the recordings, and train employees appropriately.

For law enforcement applications, in addition to important privacy concerns, there are concerns over public access rights to the recordings. Body cameras come in various forms, and may be worn or attached at various places on the body. In the extreme, they represent the surveillance state – the government can watch public and private spaces through the eyes of the police. With the assistance of facial recognition technology, police could even scan the public for those who have warrants outstanding or who are suspected of crimes. The concept may not sit well with those who are leery of government use of technology for widespread surveillance of the public.

On the other side of the coin, the cameras can certainly offer valuable evidence in connection with the crimes to which law enforcement responds. In addition, police officers are less likely to be falsely accused of excessive or improper force and are more likely to be reprimanded when excessive or improper force is used. Even better, police and those with whom they interact are more likely to behave better when they know they are being recorded. Still, the presence of a recording device would almost certainly undermine trust and the willingness of witnesses, victims, suspects, and informants to share information with the police. Police officers themselves may resent being monitored while they work. And the police often venture into private homes and must sometimes deal with violent situations and unclothed individuals, the video from which may be inappropriate for public review but attractive to the press.

Thus, the debate. At a minimum, police forces must evaluate risks and concerns and implement appropriate guidance and policies. Laws governing access to public information may need to be amended. In one survey, nearly a third of the law enforcement respondents indicated that they do not have a written policy in place for appropriate usage of body cameras. The International Association of Chiefs of Police has published sample policies for its membership. The U.S. Department of Justice’s “Implementing a Body-Worn Camera Program—Recommendations and Lessons Learned” provides guidance on topics such as: when to record, whether recording should be discretionary or mandatory, consent issues (including as pertinent to state laws requiring two-party consent for audio recording), sensitive environments or situations, public access to recordings, and retention considerations.

Body cameras, like dashboard and highway cameras, location tracking technologies, and even Internet tracking capabilities, raise privacy issues in a manner not contemplated by traditional privacy law. As stated by Justice Sotomayor in her concurrence in U.S. v. Jones (a case about GPS tracking): “Awareness that the Government may be watching chills associational and expressive freedoms. And the Government’s unrestrained power to assemble data that reveal private aspects of identity is susceptible to abuse.”

Outside of the law enforcement realm, in commercial applications of body cameras, there are concerns over the protections of confidential documents or meetings being recorded by these cameras. For example, body cameras may be worn by delivery personnel or service personnel, and a company may want to consider prohibiting or restricting the use of such cameras in the workplace by non-employees. And body cameras worn by employees could bring their own issues – in addition to privacy and data security concerns, issues like rights of publicity and copyright ownership could be blurred if the employee captures images outside the scope of employment (such as a celebrity sighting). And use of body cameras by employees of state or federal employees could implicate open-records laws.

From a personal perspective, would an employee have a right to wear a body camera to work for his or her own sense of protection? Would employees be entitled to overtime pay and benefits if they use company-issued body cameras after normal working hours?

Body cameras offer the potential to collect an unprecedented volume of detailed data and that data can itself create needle-in-the-haystack problems. What if a body camera collects information which shows that a dangerous condition exists at a manufacturing facility? Would the wearer recognize that condition? If there is a subsequent accident, would the company even be aware it has that information when served with a subpoena? If the body camera is worn by a third-party service provider, when do they have a duty to disclose the recorded dangerous situation?

These any many other issues will unfold as a result of the increase use of body cameras. A proactive approach to addressing these significant legal issues is advisable.

There is plenty of room for careful thought and analysis in this area. In a world where we have the technology to record everything, and to store all those recordings, should everything be recorded? The analysis will undoubtedly lead to a balancing of interests, but the balancers should keep in mind that compelling interests arise all over the place, beyond the area of law enforcement and commercial applications. Presumably, some parents (and claim-wary teachers) wouldn’t mind cameras in the classroom, and some patients (and claim-wary surgeons) wouldn’t mind cameras in the operating room. Is there a line, and where should it be drawn? Companies will need to formulate pro-active policies to address these issues against a backdrop of rapidly changing public opinion and policy.