Abstract
Police body camera programs have the potential to strengthen accountability for police violence, improve oversight of police-citizen interactions, and enhance public trust in law enforcement. Yet, these same cameras could also evolve into surveillance and evidence collection devices that may infringe on constitutional privacy rights. This chapter considers constitutional privacy constraints on police body camera recordings inside of the home, a space that has traditionally received heightened privacy protections. I find that the way judges analogized early police video recordings to prior technologies—specifically to still photographs, to audio recordings, and to the human eye—biased courts against applying robust constitutional privacy protections to police video recordings. By suggesting that today’s body cameras are instead better understood as part of a technological continuum of wearable and indiscriminate sensor-data collection devices, I seek to open a new doctrinal space to consider the constitutional privacy consequences of body camera programs.
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More courts have addressed—and authorized—surreptitious video recording, either in the context of remote covert surveillance with a warrant, as occurred in United States v. Torres (1984) (“declining to hold television surveillance unconstitutional per se” [p. 883]), or via warrantless recording by an in-person confidential informant, as occurred in United States v. Wahchumwah (2012) (“an undercover agent’s warrantless use of a concealed audio-video device in a home into which he has been invited by a suspect does not violate the Fourth Amendment” [p. 868]). For additional examples, see United States v. Brathwaite (2006, pp. 380–381) (“In the case at hand, we are unable to find a constitutionally relevant difference between audio and video surveillance.”), and United States v. Davis (2003, p. 366) (“[T] the videotape evidence, which merely showed scenes viewable [by the confidential informant], did not violate Davis’s Fourth Amendment right to be free from unreasonable searches and seizures.”).
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Courts following a similar line of reasoning have found that still photography is not a seizure because it does not interfere with a possessory interest. See, for example, United States v. Mancari (2006), noting that, “[n]or did the photographing…by police constitute an unreasonable seizure…because it does not ‘meaningfully interfere’ with any possessory interest…The government was, therefore, entitled to make a photographic record…in a place that the police were lawfully entitled to observe” (p. 596); and Bills v. Aseltine (1992), noting that, “the recording of visual images of a scene by means of photography does not amount to a seizure because it does not ‘meaningfully interfere’ with any possessory interest” (p. 707). The Sixth Circuit Court of Appeals adopted this conclusion by reasoning from the holding in Arizona v. Hicks (1987) in which the Supreme Court found that recording a serial number on a piece of stereo equipment was not a seizure because it did not interfere with a possessory interest. Note, however, that while the possessory interest reasoning from Hicks may be broadly applicable, the actual recording that took place is distinct from video because it was a targeted recording of information about a suspicious item rather than a broad and indiscriminate sweep.
- 3.
Commonwealth v. Balicki (2002) exempts as constitutionally permissible using video or photography “to protect the police from allegations of damage,” or “accusations of damaged or missing property” (pp. 295, 300). This type of allegation is—or I content should be under Wilson v. Layne (1999)—specific to the particular intrusion, not a general public purpose applied indiscriminately to all scenarios. Some courts have already extended similar reasoning to withhold Fourth Amendment safeguards for video documentation. For example, a federal district court in New Jersey recently found that it was constitutional for police to video record the execution of a home search warrant, including ‘before’ and ‘after’ documentation and recording images of “family photos and reading books on shelves” and money and jewelry contained in a safe, reasoning that the recordings were taken for a permissible purpose, namely to protect the police from “potential claims of liability for damage or disruption to personal property…[or] loss of valuables” (United States v. Fautz 2011, p. 616).
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The Balicki court, for instance, noted that visual recording of all kinds might make a search unreasonably intrusive by creating, “a permanent record [that] can be played and replayed as many times as necessary or desired, and the images [] focused or enlarged to show each detail of every item in that citizen’s home” (Balicki 2002, pp. 299–300) (“While such a search would have been improper even without the use of the video and still cameras, their use … contributed to its intrusiveness. It is one thing to be present in a home carrying out the directives of a warrant, and of necessity being in a position cursorily to notice many of its contents. It is quite another … to create a permanent record of it for inspection by police, prosecutors, expert witnesses, and others at any time in the future.”).
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The ACLU has advocated continuous recording policies for body cameras with some exceptions, such as “[p]rior to entering a private residence without a warrant or in non-exigent circumstances, a law enforcement officer shall ask the occupant if the occupant wants the officer to discontinue use of the officer’s body camera” (ACLU Model Act, n.d.). Note that future experimental designs for some cameras could limit the issue by recording only after an automated trigger from environmental stimuli, such as rapid movements associated with a physical confrontation, although that technology is not yet available (Stanley, March 2015).
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For instance, the Massachusetts Supreme Court found that over-extensive visual documentation, including both still and video recordings, might help to transform an otherwise lawful search into an illegitimate general one: “The fact that the officers seized certain items pursuant to the plain view doctrine does not mean that the Commonwealth can extend that rationale to support a general exploratory search of the home, photographing or videotaping anything they might find to be interesting or suspicious” (Commonwealth v. Balicki 2002, p. 300).
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Some other courts have also applied a seizure analysis to still photography. For instance, in 1985, a New York State trial court found that photographing the interior of an apartment was, “a premeditated seizure of intangible visual images” (New York v. Matteo, p. 113).
- 8.
In 1998, for instance, an Illinois state appellate court noted that generally, “police surveillance involving the use of photography to memorialize what has been seen by the naked eye does not constitute a search if the observation itself was not a search” (People v. Green 1998, p. 1097). The Connecticut Supreme Court held in 1987 that officers responding to an emergency call about a home intruder could take “photographs…depicting their plain view observations” (State v. Magnano, p. 766). And in 1981, an Arizona appeals court found that police photographs taken from inside a home were not a search because the “officers photographed only what was in plain view. They conducted no search beyond what was visible …” (State v. Smith, pp. 2–3). For yet another example, see Schultz v. State (1979), in which the Alaska Supreme Court held that a fire inspector who had lawfully entered a home without a warrant did not violate the Fourth Amendment by photographing the interior for investigative purposes, “because the premises she photographed … were in plain view” (p. 643).
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Note that Kaminski’s caution about the porousness of the “general use” exception to the warrant requirement, and her interpretation of this exception as dependent on whether people routinely use technology to access each other’s information rather than whether people use the technology at all, are helpful insights. But her analogy to the Kyllo line of cases makes the legal ramifications of law enforcement cooptation of household robots unnecessarily complex. Kyllo, Ciraolo, and Dow Chemical all concerned law enforcement’s use of hardware located outside of the home, rather than government co-optation of hardware located within the home, such as a household robot. Remote control of objects inside the home should itself qualify as a physical intrusion and thus trigger Fourth Amendment safeguards without resort to a general public use test.
References
ACLU. (2017, January). A Model Act for Regulating the Use of Wearable Body Cameras by Law Enforcement. Retrieved April 2, 2017, from the American Civil Liberties Union: https://www.aclu.org/model-act-regulating-use-wearable-body-cameras-law-enforcement.
Arizona v. Hicks. (1987). Decision, 480 U.S. 321.
Ayeni v. Mottola. (1994). Decision, 35 F.3d 680 (2d Cir.).
Bills v. Aseltine. (1992). 958 F.2d 697 (6th Cir.).
Brenner, S., & Fredericksen, B. (2002). Computer Searches and Seizures: Some Unresolved Issues. Michigan Telecommunications and Technology Law Review, 8, 39–113.
Caldarola v. County of Westchester. (2003). Decision, 343 F.2d 570 (2d Cir.).
California v. Ciraolo. (1986). Decision, 476 U.S. 207.
Colorado v. Reynolds. (1983). Decision, 672 P.2d 529 (Colo.).
Commonwealth v. Balicki. (2002). Decision, 762 N.E.2d 290 (Mass.).
de Campos, T. (2014). A Survey on Computer Vision Tools for Action Recognition, Crowd Surveillance and Suspect Retrieval. Congresso da Sociedade Brasileira de Computação, XXXIV, 1123–1132.
Development in the Law: Considering Police Body Cameras. (2015). Harvard Law Review, 128, 1794–1817.
Dow Chemical v. United States. (1986). Decision, 476 U.S. 227.
Dubbs v. State. (1942). Decision, 157 S.W.2d 643 (Tex. Crim. App.).
Gaylord v. United States, (2010). Decision, 595 F. 3d 1364 (Fed. Cir.).
Grabell, M. (2016, May 10, 4:04PM). Split Decision on NYPD’s X-ray Vans, ProPublica [blog post]. Retrieved from https://www.propublica.org/article/split-decision-on-nypds-x-ray-vans.
Guardian Project. (n.d). CameraV. Retrieved from https://guardianproject.info/apps/camerav.
Henderson, S. (2016). Fourth Amendment Time Machines (and What They Might say About Police Body Cameras). Journal of Constitutional Law, 18, 933–971.
Horton v. California. (1990). Decision, 496 U.S. 128.
Hyatt, S. (2011). Note, Text Offenders: Privacy, Text Messages, and the Failure of the Title III Minimization Requirement. Vanderbilt Law Review, 64, 1347–1393.
Kaminski, M. (2015). Robots in the Home: What Will We Have Agreed to? Idaho Law Review, 51, 661–676.
Katz v. United States. (1967). Decision, 389 U.S. 347.
Kerr, O. (2010). Fourth Amendment Seizures of Computer Data. Yale Law Journal, 119, 700–724.
Kyllo v. United States. (2001). Decision, 533 U.S. 27.
Leicester v. Warner Brothers, (2000). Decision, 232 F.3d 1212 (9th Cir.).
Mnookin, J. (1998). The Image of Truth: Photographic Evidence and the Power of Analogy. Yale Journal of Law & the Humanities, 10, 1–74.
New York v. Matteo. (1985). Decision, 485 N.Y.S.2d 446 (N.Y. Sup. Ct.).
Obama, B. (2017). The President’s Role in Advancing Criminal Justice Reform. Harvard Law Review, 130, 811–866.
On Lee v. United States. (1952). Decision, 343 U.S. 747.
Optics Planet.com. (n.d.). Thermal Imaging—Thermal Vision, Thermal Scopes, Thermal Cameras & Infrared Cameras. Retrieved from http://www.opticsplanet.com/heat-seekers-termal-imagers.html.
Pasternack, A. (2017, March 3). Police Body Cameras Will Do More Than Just Record You. Fast Company. Retrieved from https://www.fastcompany.com/3061935/police-body-cameras-livestreaming-face-recognition-and-ai.
People v. Green. (1998). Decision, 700 N.E.2d 1097 (Ill. App. Ct.).
People v. Macioce. (1987). Decision, 197 Cal. App. 3d 262 (Cal. Ct. App.).
RFID Journal. (n.d.). Frequently Asked Questions. Retrieved from https://www.rfidjournal.com/site/faqs.
Sallie v. North Carolina. (1978). Decision, 587 F.2d 636 (4th Cir.).
Schultz v. State. (1979). Decision, 593 P.2d 640 (Alaska).
Shapiro v. City of Glen Cove. (2005). Decision, WL 1076292 (E.D.N.Y. May 5, 2005).
Sprague v. Nally. (2005). Decision, 882 A.2d 1164 (Vt.).
Stanley, J. (2015, March). Police Body-Mounted Cameras: With Right Policies in Place, a Win for All [blog post]. Retrieved from https://www.aclu.org/other/police-body-mounted-cameras-right-policies-place-win-all.
Stanley, J. (2015, February). Police Officer Discretion in the Use of Body Cameras [blog post]. Retrieved from https://www.aclu.org/blog/free-future/police-officer-discretion-use-body-worn-cameras.
State v. Magnano. (1987). Decision, 528 A.2d 760 (Conn.).
State v. Smith. (1981). Decision, 634 P.2d 1 (Ariz. Ct. App.).
Taser Acquires a Computer Vision Startup to Bring AI to Police Body Cameras. (2017, February 9). Fast Company. Retrieved from https://news.fastcompany.com/taser-acquires-a-computer-vision-startup-to-bring-ai-to-police-body-cameras-4030358.
Tocher v. State. (1973). Decision, 501 S.W.2d 921 (Tex. Crim. App.).
United States v. Brathwaite. (2006). Decision, 458 F.3d 376 (5th Cir.).
United States v. Davis. (2003). Decision, 326 F.3d 361 (2d Cir.).
United States v. Fautz. (2011). Decision, 812 F. Supp. 2d 570 (D.N.J.).
United States v. Jackson. (2000). Decision, 213 F.3d 1269 (10th Cir.).
United States v. Jacobsen. (1984). Decision, 466 U.S. 109.
United States v. Jones. (2012). Decision, 565 U.S. 400.
United States v. Lee. (1927). Decision, 274 U.S. 559.
United States v. Mancari. (2006). Decision, 463 F.3d 590 (7th Cir.).
United States v. Torres. (1984). Decision, 751 F.2d 875 (7th Cir.).
United States v. Wahchumwah. (2012). Decision, 710 F. 3d 862 (9th Cir.).
United States v. Wills. (2014). Decision, 739 F.3d 511 (10th Cir.).
Volante, M. (2014, November 24). Michael Brown’s Family Releases Statement. Retrieved from http://fox8.com/2014/11/24/michael-browns-family-releases-statement-on-grand-jury-decision.
Wallin, H. (2002). Plain View Revisited. Pace Law Review, 22, 307–345.
White House Office of the Press Secretary. (2014, December 1). Strengthening Community Policing. Retrieved from https://www.whitehouse.gov/the-press-office/2014/12/01/fact-sheet-strengthening-community-policing.
Wilson v. Layne. (1999). Decision, 526 U.S. 603.
Zetter, K. (2015, October 28, 3:00PM). Turns Out Police Stingray Spy Tools Can Indeed Record Calls. Wired Magazine [blog post]. Retrieved from https://www.wired.com/2015/10/stingray-government-spy-tools-can-record-calls-new-documents-confirm.
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Wexler, R. (2018). Technology’s Continuum: Body Cameras, Data Collection and Constitutional Searches. In: Ristovska, S., Price, M. (eds) Visual Imagery and Human Rights Practice. Global Transformations in Media and Communication Research - A Palgrave and IAMCR Series. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-319-75987-6_6
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