In 2015, police officers in the United States killed 94 unarmed people— dropping to 51 persons in 2016 and rising to 68 persons in 2017, according to data gathered by The Washington Post. The Seattle Police Department (SPD) was scrutinized by the United States Department of Justice Civil Rights Division in 2011 for using force in an unconstitutional manner 20 percent of the time and using batons unnecessarily 57 percent of the time. In response to these local and other nationally publicized police shootings, police brutality incidents, and the rising impact of the Black Lives Matters movement, body cameras have garnered overwhelming public support in recent years as a solution to police abuse of power. According to a 2017 Pew Research Center national survey, 66 percent of police officers and 93 percent of the American public favor the use of body cameras.
Although the public may believe body cameras are a surefire solution for law enforcement accountability, camera implementation raises significant privacy protection issues. Before 2016, protections did not exist to address the complexity and sensitivity of body worn video in Washington State. For instance, because body worn video is a public record, any member of the public could request nearly any police body camera captured event—including, but not limited to, police interviews and/or interactions with survivors of domestic abuse and sexual assault. Not until June 7, 2018 did permanent, comprehensive legislation for privacy protection of body worn video come into effect. However, while protections are recent, the SPD’s body camera program has operated for the last four years.
For the last three years, Washington legislators and various stakeholders have collaborated to patch the holes in state legislation for public record disclosure protections. To understand this issue, I follow their work and the sequence of events leading up to the creation of body camera legislation in Washington over the last four years, closely observing the Seattle Police Department’s interests and involvement in its crafting. To lighten the SPD’s financial burden when the public requests body worn video, the SPD supported legislation that limits public access to body worn video footage and lessens redaction requirements for disclosed footage. This means that the SPD advocated for enhancing and easing privacy protections simultaneously.
The timeline below captures the major events I discuss here.
Timeline
December 2014
Seattle’s Body Cam Pilot Program is established.
June 2016
Engrossed House Bill 2362 takes effect.
August 2016
First meeting of the Joint Legislative Task Force on the Use of Body Worn Cameras.
October 2016
Second meeting of the Joint Legislative Task Force on the Use of Body Worn Cameras.
May 2017
Court approval for Seattle Police Department Manual section 16.090 “In-Car and Body-Worn Video” is granted.
July 2017
Seattle Mayor Edward B. Murray issues an Executive Order mandating that all Seattle Police Department officers are outfitted with body-worn video.
September 2017
Third meeting of the Joint Legislative Task Force on the Use of Body Worn Cameras.
October 2017
Fourth meeting of the Joint Legislative Task Force on the Use of Body Worn Cameras.
November 2017
Fifth meeting of the Joint Legislative Task Force on the Use of Body Worn Cameras.
December 2017
Joint Legislative Task Force on the Use of Body Worn Cameras issues report to Washington State Legislature.
March 2018
Senate Bill 6408 is signed by Governor Jay Inslee.
June 2018
Senate Bill 6408 takes effect.
December 2014: Seattle’s Body Cam Pilot Program
In 2014, the SPD established a Body-Worn Video Pilot Program. In the body cam program’s beginnings, only 12 officers who volunteered to participate in the program wore cameras. Flash forward to 2017, when the City of Seattle’s Mayor Edward B. Murray issued an Executive Order, mandating that all SPD’s patrol officers be outfitted with body cams.[1] In response, 920 officers were officially outfitted by January 2018.
Amid this rapid incorporation of a device that drastically changes the landscape of law enforcement, many interests collided—particularly in the area of personal privacy for those whose images are captured. In the words of Washington State Legislature House Representative Drew Hansen (D), one of the legislators who sponsored future body worn video-specific privacy legislation, “There’s not a lot of agreement about anything around body cameras, but there is pretty broad agreement about the need to protect people’s privacy.”
However, privacy considerations were not front and center when body worn video was implemented in 2014. True, the SPD published a “Body-Worn Video Pilot Program” protocol section of the SPD manual that specified where and when officers could record—which was later replaced in May 2017 by section 16.090 “In-Car and Body-Worn Video,” which provided protocols of vastly greater detail. However, little consideration was given to public access to body camera footage. Prior to 2016, no legislation existed to address Body Worn Video requests, specifically.
Body camera video is a public record and, therefore, falls under the jurisdiction of Washington State’s Public Records Act. Such records may be accessed by the public via a Public Disclosure Request to the Seattle Police Department. The “Department Records, Access, Inspection & Dissemination” section 12.080 of the SPD manual outlines the procedure for accessing body camera footage, as detailed below:
- Requestor submits a Public Disclosure Request.
- Request is received by Public Disclosure Unit, which then contacts the necessary sources for the information—specific employees or units—and establishes a date by which the information will be supplied.
- Information sources receive the Public Disclosure Request. Such sources are required to supply thePublic Disclosure Unit with the record by the specified due date, but, if sources believe that the record is protected from public disclosure, they may attach a memo describing why they believe it should be exempt.
- The Public Disclosure Request Steering Committee discusses and decides, considering the source’s memo, whether the record is protected from public disclosure.
- The Public Disclosure Unit receives the records from its contacts. The Public Disclosure Unit then makes all necessary redactions to the public record and then supplies it to the requestor.
At face value, such a procedure may seem durable enough to effectively protect individuals’ personal privacy—considering the “many” layers of checks and balances of memos. However, as the process stood prior to March 2016, the Public Records Act’s provisions were ill-suited to address the immensity and complexity of information captured by body worn video and archived by law enforcement. Regulations offered a very limited description of what generally qualifies as an “invasion of privacy” in its RWC 42.56.050. Invasion of privacy was determined with a two-pronged test: (1) being “highly offensive to a reasonable person” and (2) of “legitimate concern to the public.” Beyond that, no other provisions existed to limit what kind of footage or the quantity of footage that could be released to the public. Such limited consideration for individuals’ privacy and no privacy exemptions established for body worn video requests meant that the Public Records Act opened the door to major privacy violations.
Due to the severe lack of protections and regulations, sensitive and invasive body camera footage was available for request. So-called “extraordinary requestors” capitalized on the Public Records Act’s vulnerability by spamming the SPD with requests for vast quantities of footage, according to Seattle Police Department Director of Transparency and Privacy, Mary Perry. Washington State Legislature Senator Mike Padden (R), another one of the legislators that sponsored body worn video-specific privacy legislation described the situation as a “fishing expedition” because requestors would request days to months of body camera footage.
Additionally, individuals uninvolved in and unrelated to the events in their requested recordings had the ability to request and access sensitive body camera footage. For example, body worn video of law enforcement interviews and/or interactions with victims of sexual and domestic violence were available for request by uninvolved participants. This issue was of grave concern to stakeholders weighing in on the creation of future legislation surrounding this issue, namely the WA Coalition Against Sexual Violence. This group stressed the importance of privacy protections to encourage victims to continue to report incidents of violence, rather than be deterred by fears their information could be seen by anyone if they choose to report.
Prior to the release of body worn video to a requestor, the SPD redacts videos to protect individuals. However, this practice is notoriously time-intensive and costly. When a video is redacted, identifying indicators of a person’s identity are either blurred out or covered by a box. Such identifiers may include: “faces, clothes, tattoos, addresses, photos, paperwork, computer screens names, etc.” The meticulous nature of video redaction, compounded by high volume requests was beyond the technological or financial capability of law enforcement to provide. In 2018, video redaction costs for SPD is estimated to total $223,918.
As more officers became outfitted with cameras and the SPD’s body cam program grew, the immensity and the sensitivity of the footage requested for disclosure continued to strain the SPD’s budget. The agency’s body camera program is already expensive, costing approximately $800,000 to $900,000 annually—with $853,708 being budgeted for 2018. The majority of the expense comes from costs of footage management, storage and redaction. The SPD hires the third-party provider Axon for its body cameras and data storage services, utilizing its cloud storage partner Microsoft Azure Government Cloud.
In response to these privacy issues, Washington lawmakers began working to fine-tune state law to properly address personal privacy concerns for body worn video in the Engrossed House Bill 2362 of 2016, a bill that offered temporary privacy protection. They also created a task force to study the privacy implications in greater depth.
April 2016: Engrossed House Bill 2362
In April 2016, the Washington State Legislature passed a critical temporary amendment to the Public Records Act that created privacy exemptions for agencies that deployed body cameras prior to June 9, 2016. The Engrossed House Bill 2362—effective June 2016 and most of its provisions expiring by July 2019—temporarily addressed the privacy concerns surrounding public access to body worn video. It accomplished the following:
- Establishes a definition of “body worn camera recording;”
- Specifies the kind of information required to request body worn video and audio recordings;
- Identifies which parties bear responsibility for redaction fees upon request for body worn video records;
- Mandates that agencies establish detailed body worn video policies;
- Creates a state-wide task force comprised of all interested parties to evaluate the use of body cameras and to provide a report of recommendations to the governor by December 2017.
Tackling the problem of invasive and excessive public disclosure requests, the House bill’s amendment establishes that a person must supply the following information to request the BWV footage
- Name(s) of those involved in the incident recorded;
- The incident or case number;
- The date, time and location of the incident(s);
- Identify the law enforcement or correctional officers involved in the incident(s).
House Bill 2362 also expanded the definition of what kinds of images in body worn video would be exempt from disclosure and/or subject to redaction:
- The inclusion of visible minors;
- Nudity or sexual intercourse;
- Interiors of a residences in which there is a reasonable expectation of privacy;
- Interiors of a medical facilities, counseling programs, or therapeutic programs.
Additionally, the amendment pins the redaction fees on body worn video requestors with some exemptions. Exemptions include: if the requestor is an individual directly involved in the incident recorded in the requested body worn video footage or that individual’s attorney, an individual involved in a criminal case concerning the incident or that individual’s attorney, or is an executive director of one of Washington’s many minority population commissions—such as the commissions of Asian Pacific American Affairs, Hispanic Affairs, African American Affairs and others. However, the media is not exempt from the redaction fees.
Such information hurdles were established in this bill to limit the volume of body worn video requests and to allow police departments, such as the SPD, to recover some of the costs associated with providing and redacting footage. The bill functions as a temporary bandage to the Public Records Act, protecting individuals’ personal privacy in the short-term. The majority of House Bill 2362’s amendments and additions were set to expire by July 2019, so that they could be revisited by legislators when new information gathered by the task force was available and to make changes accordingly to the task force’s recommendations.
June 2016: Engrossed House Bill 2362 Takes Effect
As part of Bill 2362, a task force was created to help make better legislation when the bill expired in 2019. Bipartisan leadership spearheaded the task force—with Washington House Representative Drew Hansen (D) and Washington Senator Mike Padden (R) co-chairing. In the words of Senator Padden, the task force’s objective was “to try to reach a consensus from the stakeholders, balance the interest of transparency and privacy, and to hear from a lot of people about the impact of body worn cameras.”
The task force was comprised of 36 voting members who all were representatives of stakeholder organizations and groups of the body camera debate, including representatives of the following organizations: Washington state legislature, attorney associations, law enforcement officers, the American Civil Liberties Union, Washington coalitions, local government, Washington state’s minority commissions, immigrant and refugee communities, victim advocacy groups, the news media, the general public, and the body camera technology industry.
The task force convened on five separate occasions in public settings across different regions of the state, received presentations, reports, and testimony concerning body camera footage. The outcome of the task force was a holistic report that provided recommendations for amendments and additions to the Public Records Act—recommendations meant to guide the creation of permanent legislation in later years.
Among the voting stakeholders of the task force was the SPD, represented by Mary Perry, the Seattle Police Department Director of Transparency and Privacy. She collaborated with a small group of other task force representatives to formulate recommendations to task force chairman Senator Padden and Representative Hansen about what amendments or additions to the Public Records Act the task force should ultimately recommend in their report to Governor Inslee.
In November 2017, the SPD and others recommended the following action items:
- To make the Engrossed House Bill 2362’s temporary amendments to the Public Records Act (42.56.120, 42.56.240 and 42.56.080) permanent, with the exception of both the provision that would make the Bill expire in 2019. The task force acknowledged that these revisions to the Public Records Act needed deeper study.
- In regard to the “covered jurisdiction” provision (located in RWC 42.56.240(14)(g)(ii)) which established that the new rules applied to jurisdictions that deployed body worn cameras or pilot programs prior to the effective date of the House Bill on June 9, 2016, such as the SPD.
The majority of task force voting members agreed upon the group’s recommendations. The recommendations were translated into state law—via the Senate Bill 6408, which amended the Public Records Act permanently. It did this by broadening the definition of an “intimate image” (in RWC 42.56.240(14)(a)(iii)) to include public areas, rather than just private areas as well.
It also specified in greater detail what such images entailed. The suggested language includes vastly more detail—upgrading from just eight words to 45 words, rich with details about what specific images specifically qualify as “intimate,” namely qualifying nudity and sexual behaviors. Seeking to reduce the volume of redaction work, the SPD recommended that only intimate images of an “identifiable individual” or an “identifiable person’s intimate body parts” be subject to redaction. This recommendation was controversial among the task force members and the “identifiable” qualifier for redaction was not recommended by the majority of voting members and did not appear in future state law.
However, the inclusion of public areas was recommended in the task force report to the governor. The passed Senate Bill 6408 included the suggested language backed by the SPD nearly verbatim, omitting the specifications about it being an “identifiable individual” or an “identifiable person’s intimate body parts.”
In addition, the SPD advocated for limiting the definition of a “minor” by including the adjective “identifiable” in order to reduce the amount of redaction required and its corresponding expense. This change would excuse the SPD from redacting all images of all unidentifiable minors in requested footage, saving the agency both time and money. This change was not recommended by most voting members of the task force and was not included in the future Senate bill.
Additionally, the SPD argued that clarification was needed for statutory retention requirements of body camera video footage by law enforcement agencies. SPD endorsed that all records must be maintained for at least 60 days but may thereafter be destroyed according to the applicable record retention schedule. This was recommended by the majority of the task force’s members and included in the Senate Bill.
Finally, per the Senate Bill 6408’s revisions to the PRA, all body worn video recordings must be retained for up to 60 days and thereafter retained according to the applicable retention schedule. SPD retains the original, unredacted recordings of crimes 3.5 years—per the typical statute of limitations for most crimes. Footage related to crimes, such as manslaughter, that do not have a statute of limitations will be archived indefinitely in the Microsoft Azure Government Cloud.
May 2017: Court Approval for “In-Car and Body-Worn Video”
The detailed content provided in the SPD Manual concerning body worn video system policy was mandated by Engrossed House Bill 2362, per the addition of section 3 in RWC.42.56.120. The foundations of the new section originated in policies established for the 2014 Body-Worn Video Pilot Program in section 16.091. The new section contains much of the protocol from the pilot program, but with significantly greater amount of detail.
At the time of Mayor Murray’s executive order, the SPD had already begun the process of implementing body worn video into its agency—establishing a pilot program for body worn video in 2014 and receiving court approval for the SPD Manual “In-Car and Body-Worn Video” section 16.090 in May 2017.[2] Within this section exists detailed body worn video system protocol of when cameras must be rolling
- During dispatch to 911 calls;
- Traffic and “Terry” stops; officer views criminal activity;
- Arrests and seizures; searches and inventories of vehicles, persons or premises;
- Suspect transport;
- Vehicle pursuits;
- Questioning suspects, victims and witnesses.
Likewise, the protocol outlines the circumstances that signal the conclusion of an event and signal to stop recording
- If a person dwelling in a residence requests that officers turn off their cameras (unless officers have a warrant or a crime is taking place);
- If an officer’s investigation has concluded;
- If it is unlikely that the officer will have any additional contact with the person.
Additionally, there are spaces labeled as “sensitive areas,” in which the SPD is restricted from recording:
- The interiors of restrooms;
- Interior of jails;
- The interior of medical and therapeutic facilities;
- The interior of a private residence if a person requests the cameras to be turned off;
- Of persons lawfully expressing their freedom of speech, press association, assembly or religion.
Of course, there are exceptions. If police are in such areas for a law enforcement purpose, cameras must be rolling.
The SPD Manual does attempt to address privacy concerns. It mentions that there may be “circumstances when the respect for an individual’s privacy or dignity outweighs the need to record an event.” In such circumstances, SPD officers are empowered to use their own discretion in whether to record. Such circumstances are: “natural death scenes, death notifications, child or sexual assault victim interviews, cultural or religious objections to being recorded, and when the use of BWV would impede the cooperation of a victim or witness.” If an officer believes that turning off their camera will encourage a witness or a suspect more inclined to disclose information, officers may choose to turn their cameras off. However, if officers are “questioning victims, suspects or witnesses,” they must be recording the event in some form. For this reason, audio-recording will remain on during such interviews.
July/December 2017: Mandated Body Worn Video and Task Force Report Issued
The SPD’s representative, Mary Perry, spoke in favor of Senate Bill 6408 at the Law and Justice Committee public forum on January 29, 2018, expressing support for the bill because of SPD’s concerns about public record requestors who are not directly involved in the videos requesting access to the material. She included the media in this category of so-called “extraordinary requestors.”
Perry reported in her testimony that “extraordinary requestors” in response to the redaction cost shifting established in HB 2362, “reducing their requests, making them more targeted” in response to the redaction cost shifting established in HB 2362.15 Perry cited that over 500,000 in-car and body worn videos were generated by the SPD in 2017, and that, per consequence of the reallocation of redaction costs, the police department is receiving half as many body worn video requests as in-car video requests. She stressed the necessity of the bill for deterring spam requestors, as well as privacy protections for victims of sexual assault and domestic violence.
March 2018: Senate Bill 6408 is Signed
In March 2018, Senate Bill 6408 was passed nearly unanimously by both the House and the Senate and was signed by Governor Jay Inslee, ushering in permanent legislation concerning requests for body worn video. The bill made permanent the majority of provisions from the previous House bill and came into effect on June 7, 2018.
June 2018: Senate Bill 6408 is Effective
Body camera implementation outpaced state privacy law in Washington, and this is likely to happen again–not only in the state, but across the country–as law enforcement monitoring and evidence-collection technology evolves. Body cams became more than an accountability device for officers, rather, the devices function as evidence-collection tools that police agencies use for criminal investigations.
Expansions of body camera tech are already in the works, according to the SPD’s body camera technology provider, Axon. Axon assists over 5,000 agencies with its evidence technology programs and, since 2007, supplied 180,000 body cameras worldwide. Axon holds a near-monopoly over the body camera market, as it recently acquired its largest competitor VieVu in March 2018 and now contracts with the largest police agencies in the country, such as the New York Police Department, Chicago Police Department, and the Los Angeles police department, among others. Axon’s VP of Software Engineering Jay Reitz acted as a voting member in the task force and he presented to other members on the company’s aspirations for law enforcement technology that will, likely, further complicate the issue of privacy protection.
Drones and live streaming of body camera footage is expected to “modernize” policing. In its Axon Air service, Axon provides law enforcement drones that can be used for traffic accident reconstruction, search and rescue, next generation evidence collection, and much more. In all these uses, individuals recorded may not be informed that they are being recorded–which raises privacy concerns.
Axon advertises to agencies that Air Axon drone technology “expands your capabilities” to police effectively. What is not advertised is how drone technology will expand agencies’ capability to breach privacy. In its Axon View service, Axon enables law enforcement to live stream body camera footage for “instant replays” of recorded events on officers’ mobile devices, locating and accessing footage by keyword search. Such procedures are seamless and convenient; however, protections for access to this sensitive information are a concern. Additionally, Axon is working on fully-automated redaction technology for which “human review not required.” This means that privacy considerations for requested body worn video or drone-video would be handled by artificial intelligence technology.
Bearing in mind these future developments, the task force members supplied recommendations for changes to the Public Records Act that they believed would be applicable for future body camera technology developments. However, drone-worn video comes with entirely different considerations and privacy protection will become major concern and obstacle.
Implications
New law enforcement technology will continue to change the landscape of policing in the United States, just as body cameras already have. Sticky questions will have to be engaged with, such as balancing the privacy of individuals against the public’s need to know about police abuses. It can be expected that new legislation and, perhaps, another task force will be necessary in the near future to research the technology’s implications for privacy protection, as policing becomes more technology-dependent and invasive to individuals’ privacy.
Endnotes
[1] “Executive Order 2017-03.” Edward B. Murray, Mayor to City of Seattle. December 17, 2017. Seattle, Washington.
