The nationwide call for police body cameras has become louder after the highly-publicized deaths of African-American civilians at the hands of police over the past eighteen months. In some cases, we have video recordings of what occurred—recall the Walter Scott shooting in South Carolina—because bystanders captured portions of these encounters with their own devices. Documenting these incidents shouldn’t be left to chance. Requiring officers to attach cameras to their uniforms to create records of police-civilian encounters can promote two noble goals: protect citizens from misconduct by law enforcement and police from fraudulent claims.
As Craig LeMoult reported thismorning, the central Massachusetts town of Erving is the first in the Commonwealth to embrace police body cameras. We should applaud the Erving police department for taking this bold step. But Erving is dipping its toes into largely uncharted waters in Massachusetts. As a result, there are schools of potentially fishy legal issues swimming beneath the surface. When can and should the Erving police turn off the camera? What is the legal significance of any malfunction? What about the retention and preservation of the recordings—for how long, in what place, and under what conditions? Who should have access to them and for what purpose? Should they be subject to public records laws?
Perhaps the most pressing issue relates to how police body cameras fit within Massachusetts’ wiretapping laws. The most pertinent statute requires law enforcement to generally obtain a warrant before they use an “intercepting device” to record private citizens (https://malegislature.gov/laws/generallaws/partiv/titlei/chapter272/section99). The statute broadly defines intercepting device as “any device or apparatus which is capable of transmitting, receiving, amplifying, or recording a wire or oral communication.” One longstanding way around the wiretapping ban is if both the police and the private citizen consent in advance to the recording (http://masscases.com/cases/sjc/354/354mass375.html). In fact, it is often (and somewhat inaccurately) reported that Massachusetts is a “two-way consent” jurisdiction: that the only way to bypass the warrant requirement is through mutual agreement.
But a closer look reveals a more nuanced picture. The statute proclaims that “[t]he term ‘interception’ means to secretly hear, secretly record, or aid another to secretly hear or secretly record the contents of any wire or oral communication through the use of any intercepting device.” The key word is secretly. Case law from the Supreme Judicial Court reinforces the idea that the wiretapping law targets secret interceptions of communications. (http://masscases.com/cases/sjc/370/370mass502.html)
The wiretapping law, then, only comes into play if the recording is conducted secretly. What if the recording is conducted openly? In that case, it would appear as if neither a warrant nor consent would be needed. A police officer could alert a private citizen of the filming—or simply present the camera in an open and obvious way—and skirt the secrecy prohibitions of the wiretapping law.
The Erving police department has published a policy statement about how it intends to regulate body cameras (http://www.scribd.com/doc/286687758/Erving-Police-Department-Body-Camera-usage-policy). The statement, among other things, prescribes that “[w]henever possible, officers should inform individuals that they are being recorded.” Notably, the policy does not ask the officers to seek consent from the citizens beforehand.
What are the consequences of a private citizen refusing to be recorded in Erving? As long as the citizen is on notice—and thus the recording is not secret—then presumably the wiretapping statute would pose no barrier. The recording could be used for an array of purposes, including admission into evidence in court.
Erving’s policy acknowledges that “[i]n locations where individuals have a reasonable expectation of privacy, such as residences, they may decline to be recorded” unless it is part of an arrest or search. This is commendable, but does it go far enough? For the sake of clarity, should other categories be mentioned in the policy together with “residences”? The ACLU of Massachusetts has published a model policy that would specify not only that people have a right to decline recording in their homes, but also that alleged victims of sexual assault and civilians who seek to provide anonymous tips or assistance to law enforcement deserve the benefit of this treatment too. (https://aclum.org/app/uploads/2015/09/ACLUM-Model-Municipal-Body-Camera-Policy-9-16-15.pdf,
Finally, regardless of the good faith behind the Erving policy statement, what are the ramifications of a violation of an internal office policy? Suppose an Erving officer fails to abide by a citizen’s decision to decline being recorded in her home. Would any subsequent, non-secret recording be admissible in court? And what discipline, if any, would the officer receive?
The answers to these questions—and many others—are far from clear. This is why a statewide agency (perhaps the Attorney General’s Office or the Executive Office of Public Safety and Security) and/or the Massachusetts legislature should act to establish procedures. There is a bill pending that would exempt police body cameras from the wiretapping statute altogether (https://malegislature.gov/Bills/189/House/H1637), but that would not answer many of the lingering questions.
The Erving experiment is welcome and, frankly, overdue. But we need comprehensive statewide procedures in place to serve the admirable purposes that underlie the practice of recording police-civilian encounters. And we need it soon—before police departments in Boston and other cities begin to use this technology.
Northeastern University School of Law Professor Daniel S. Medwed is a WGBH News analyst.