Obama's Plan for Better Policing: The Good, the Bad, and the Body Cameras

By Nadia Kayyali, Electronic Frontier Foundation
EFF.org
Dec. 09, 2014

You may be shocked to hear that EFF doesn't think technology is a solution to every problem. That includes problems with the police and with public safety. And, as we've pointed out when it comes to drones and other types of local surveillance, we think adoption of new technology requires communities to understand and discuss the pros and cons.

That's why we think President Obama's announcement last week about federal assistance to local law enforcement was a little lackluster. The President made it clear that he plans to leave largely untouched the controversial programs that funnel military equipment and surveillance technology to communities like Ferguson, and fund programs like fusion centers. The announcement accompanies the release of a 19-page report [PDF] on "Federal Support for Local Law Enforcement Acquisition" from the President's office.

The Good The report recommends increased local community engagement around the acquisition of equipment. President Obama has asked staff to draft an order "directing relevant agencies to work together and with law enforcement and civil rights and civil liberties organizations to develop specific recommendations within 120 days," for process improvements.

And consistent with calls from ACLU of California, EFF, and others, the order might "require local civilian (non-police) review of and authorization for LEAs [law enforcement agencies] to request or acquire controlled equipment." This should be the baseline for implementation of any new technology, and we're glad to see that it's being considered. Similarly, the order might "require after-action analysis reports for significant incidents involving federally provided or federally-funded equipment," as well as increased training.

But these are minor improvements. And they're not actually in the implementation stage, so as Phil Mattingly over at Bloomberg put it, "Obama's review will lead to ... more review?"

The Bad Worse, the bad significantly outweighs the good in the report and recommendations. Here's why: the review and the President's plan for action doesn't do anything to end or even slow any of these equipment transfers. In fact, as Guardian columnist and former EFF activist Trevor Timm points out, the report "largely defend[s] the variety of federal programs that funnel billions of dollars of weaponry and high-tech surveillance gear to local police every year." It spends 2 pages providing recommendations, and 17 describing the programs.

And as with the bulk of the Congressional hearing that happened on September 9 around military equipment transfer, the President's review broadly overlooks surveillance technology. But the same DHS money that funds armored vehicles and night vision goggles funds intelligence gathering at the local level through fusion centers and drones, and events like Urban Shield, a 4 day long event that featured "preparedness" exercises as well as a marketplace of military and surveillance technology. And automated license plate readers, iris scanners, and facial recognition technology are all candidates for federal assistance.

The Body Cameras Body cameras are the most concrete piece of President Obama's proposal. The "new Body Worn Camera Partnership Program would provide a 50 percent match to States/localities who purchase body worn cameras and requisite storage" through a "$75 million investment over three years [that] could help purchase 50,000 body worn cameras."

But not everyone thinks body cameras will help.

The basic premise of body cameras, of course, is that police officers who are being recorded will behave better. And if they don't, it will be easier to obtain evidence of their bad behavior. After all, it is videos like the one showing the horrific choking of Eric Garner that have spurred the national conversation around police brutality--making this a tempting proposition.

And an oft-cited study backs this up: police in Rialto, California began wearing body cameras for a year in February 2012, and as the Guardian reported, "public complaints against officers plunged 88% compared with the previous 12 months. Officers' use of force fell by 60%."

Those results are impressive, but have failed to convince some critics. Jacob Crawford, an activist who has long been involved in Copwatch, worked with the Canfield Watchmen, residents at the Canfield housing project in Ferguson to help them obtain their own cameras. Along with civil rights attorney Rachel Lederman, he points out that the widely publicized Rialto study has been stretched beyond belief:

Rialto is a small city with only 66 cops, and its Police Chief, Tony Farrar, collaborated with Taser International, Inc., in the study. The Taser corporation has gained record profits by marketing body cameras to hundreds of cities, along with a cloud-based backup and search service called Evidence.com, which was used to collect the data for the Rialto study that led to many of these sales.

And of course, there's the problem that, unless used very carefully, body cameras incidentally capture footage of anyone in the line of a police officer's sight. That's why an ACLU policy paper notes that body cameras can be a good thing-- when accompanied by strong policies to address the privacy concerns. It points out several issues that must be considered in developing such policies:

Police must not be able to "edit on the fly, meaning police cannot have control over when a camera is turned off or on," (although if cameras are always on, that poses a serious threat to privacy);
police must provide notice that recording is happening;
data should be retained only as long as necessary;
recordings should be used only for misconduct hearings and where there is a reasonable suspicion that a recording has evidence of a crime;
policies for access to footage should ensure that individual's privacy is maintained, while also allowing transparency and oversight; and
body camera systems must be carefully designed to ensure data is strictly controlled.

But others question the efficacy of cameras. After all, the shocking video of police brutality in cases like Eric Garner's have surely helped spark public protest--but didn't discourage the actual conduct. And in reference to multiple specific incidents over the last few years where police were filmed engaging in serious misconduct, Guardian columnist and criminal defense attorney Alexa Van Brunt notes, "video didn't deter them, and it didn't help their victims. Instead, officers in each case thought they could get away with police brutality--and they may have been right."

WeCopwatch's Crawford also points out that in Oakland, one of the first localities to implement the use of body cams, results have not been encouraging. Cameras have issues with battery life, and have "shown themselves highly likely to malfunction during crucial incidents--or fall off, or be left behind or not turned on, despite policies which require officers to wear them and activate them during stops and other encounters." And Oakland's independent police monitor (appointed because of civil rights litigation against the department) noted in a January 2014 report that "[t]he matter of the proper use of the Department's PDRDs remains a concern. In too many instances, there are questions about the measure to which personnel throughout the Department understand the use, review, and utility of these devices."

Finally, as Crawford points out, body cameras don't "show close proximity physical encounters between an officer and victim," while still, "allowing the officer to supply his own narration, such as yelling 'Stop resisting' while pummeling a person."

Oh, and the Ugly Underlying all these concerns is an ugly truth: none of these suggestions can fully address the structural problems--especially racism--that allow police to brutalize and even kill unarmed civilians (predominantly people of color, in particular young black men) with impunity. And until that happens, all the technology in the world won't help. Many communities deeply mistrust law enforcement, a mistrust based on documented police misconduct. That mistrust, and the reasons for it, have been around much longer than wearable cameras. We shouldn't pretend that cameras will solve the problem.