Connecting state and local government leaders

Prosecutors’ Perspective on Police Body-Worn Cameras

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Connecting state and local government leaders

The proactive steps being taken by law enforcement and legislators at the federal and state level are most welcome by prosecutors.

Editor’s Note: On Wednesday at 2 p.m. ET / 11 a.m. PT, Route Fifty Executive Editor Michael Grass will moderate a webcast panel discussion on police body-worn camera program implementation, featuring one of the authors of this guest article, Antonia Merzon. | REGISTER AND TUNE IN.

WASHINGTON — As “Law and Order” famously reminded us, the criminal justice system is made up of two equally important actors: the police and the prosecutors. There is no law enforcement-related topic of greater public interest than the rapidly increasing deployment of Body Worn Cameras (“BWCs”) to police.

Because of the urgent need for thorough, thoughtful and comprehensive policies to govern the use of BWCs and, equally importantly, the massive amounts of sensitive data they already are generating, the International Association of Chiefs of Police (IACP) and several other organizations recently convened a conference in the nation’s capital on BWC policy issues.

At this conference, the undersigned presented some thoughts on BWC policies from the perspective of prosecutors, who will have to present BWC evidence in court, while safeguarding the evidentiary and other rights of defendants. Prosecutors also will be charged with investigating and, as appropriate, prosecuting wrongful conduct by law enforcement officers. We present here a brief summary of that discussion, which can be viewed in full here.

Need to Secure Sensitive BWC Data. BWCs will document highly probative evidence in criminal cases, including admissions of guilt, identifications of suspects, witness statements, and crime scene details. They also will capture citizens in some of their most vulnerable and embarrassing moments, such as domestic violence situations, and in situations where no crime is involved, like helping the ill or injured.

Such information requires high levels of security and protection to ensure the confidentiality and integrity of this BWC data. Robust security of BWC data serves two critical purposes.

First, this extremely sensitive information needs to be protected from hackers and employees of third parties, such as cloud storage providers, who have no clear, mission-related need to access BWC recordings.

Second, for BWC data to be used in court, prosecutors must authenticate the recordings by showing they were produced and maintained through proper technical and policy protocols for camera use, uploading footage, case management, and storage.

As officers of the court, prosecutors also must assure judges and defense lawyers that BWC data provided to the defense and presented in court has strong protection and demonstrable chain of custody, and that the government has located and produced all such data to which the defendant is constitutionally entitled.

Achieving these important goals will require at least two important steps by police and prosecutors:

  1. The implementation of strong and widely-accepted security standards for data, such as those mandated by the FBI’s Criminal Justice Information System (CJIS) Security Policy. Indeed, because of the extreme sensitivity of BWC data, law enforcement agencies should consider data security measures even beyond those required by CJIS. End-to-end encryption can be a valuable security solution in some situations; for BWC data, though, this may not be a viable option due to the difficulty of accurately and comprehensively searching, indexing, and retrieving such fully encrypted data.  
  2. The implementation by law enforcement agencies of clear, written, and consistently enforced polices and procedures governing the use of BWCs, as well as the storage of BWC recordings. Verifying the authenticity of BWC data, and satisfying other evidentiary and discovery requirements, will be a much easier task if such data is handled according to well-planned protocols covering these topics.

Practical Considerations. On a practical level, prosecutors will have to adapt to the added burden of reviewing and managing BWC footage. Many jurisdictions have multiple law enforcement agencies filing criminal cases with a single prosecutor’s office.  Such offices must have the technical capacity to view each agency’s recordings, even if in different formats and/or based on different technologies. Moreover, reviewing BWC footage takes time and prosecutorial resources, perhaps requiring additional police and prosecution personnel.

Finally, prosecutors’ offices are certain to receive public and media requests for BWC footage. State and federal rules about “open records” vary widely, but the sensitivity of case information, the privacy interests of recorded individuals, and the potential for recordings to be widely shared over social media will be significant factors in handling such requests.

Legal Developments Regarding Body-Worn Cameras

The last year has seen significant policy and legal development activity at the state level to address BWC issues, though the jurisdictions have taken somewhat different paths, as illustrated by several examples. South Carolina has tasked a training council to develop guidelines for BWC use, such as when to turn them on and off, how to access the BWC data, and the costs, not only of the cameras themselves, but also of data retention, storage, and personnel. Illinois passed a more detailed law, mandating ninety-day retention of BWC footage, thirty-second pre-recording of events, and up to ten hours of recording capability for deployed BWCs.

In Colorado, legislators last year considered creating a law requiring law enforcement use of BWCs. As the discussion advanced and more information became available, including a Colorado Best Practices Committee for Prosecutors report, legislators identified many conflicting policy issues surrounding BWCs. As a result, the legislature directed a study group of interested stakeholders to resolve some of these policy questions. In March 2016, the study group will publish its report, including “best practices” guidance on law enforcement use of BWCs.

At the federal level, two bills have been introduced in Congress addressing BWC deployment. The Police Camera Act would provide grants to state and local governments to develop and implement BWC deployment programs, to include purchasing cameras and other implementation costs. The Safer Officers and Safer Citizens Act also would provide grants, but gives preferential treatment to law enforcement agencies implementing data retention policies and public transparency about BWC data.

From a prosecutor’s standpoint, the pro-active steps being taken by law enforcement and legislators at the federal and state level are most welcome. It is vital to put into place appropriate policies and security and privacy protective measures now, rather than after massive amounts of BWC data have already been generated.

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Bryan Cunningham is an information security, privacy, and data protection lawyer, and a senior advisor of The Chertoff Group, a security and risk management advisory firm. Formerly, he was a U.S. civil servant, working for the CIA and Department of Justice and serving as Deputy Legal Adviser to National Security Advisor Condoleezza Rice.

Nelson O. Bunn, Jr. is Director of Policy and Government Affairs at the National District Attorneys Association. He previously served as the Director of Government Affairs at The Charles Group, LLC, where he worked primarily with the Major County Sheriffs’ Association, representing their views on numerous law enforcement issues.

Antonia Merzon is a Consultant to the Colorado District Attorneys’ Council and a lecturer on identity theft and cybercrime. She previously served as an Assistant District Attorney in the Manhattan District Attorney’s Office where she worked in the Trial Division and served as chief of the Identity Theft Unit.

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