Who watches the watchers? With police body cams, we all can

Author: Jillian Friedman, lawyer and student DRT6929E

Worry that the state is abusing its powers through surveillance of its citizens has been a ubiquitous and powerful theme in contemporary political discourse. Most recently it manifests around the Harper government’s Anti Terrorism Law Bill C-51 that would grant additional surveillance powers to the government over Canadian citizens.

Older yet are ideas regarding a state’s use of force against citizens through the police. Roman poet Juvenal wrote quis costodiet ipsos custodies, or, who will guard the guards themselves? The question is indeed just as difficult to answer today as it was in the 2nd century. The past week’s media discussions about using police body cameras forces us to consider the privacy implications where everyone and anyone can “watch the watchers”.

Over the past year hundreds of American law enforcement agencies have outfitted police officers with body-worn cameras. Most recent is Charleston, North Carolina, where a passerby filmed the killing of Walter Scott by a police officer who fired 8 shots at the man as he ran away. A number of cities worldwide use body worn cameras on police, both to protect the police and to prevent tragedies such as the one that occurred in North Carolina. Empirically, body worn cameras reduce complaints against the police. Such has been the case in the UK, where body-worn cameras are more common.

The idea is being explored in Canadian media as well. The legal questions related to how the data from the cameras would be stored, managed, shared and destroyed is tricky. However, if government and law enforcement are going to use technology and metadata to improve oversight of criminal activity and terrorism, they might as well use it for oversight of themselves as well. That said, police body cams would record much more than just police behavior, it also captures the individuals interacting with them who are often in extremely vulnerable situations.

Canada’s federal Privacy Act applies to the personal information handling practices of federal government departments and agencies. In Quebec, the legal framework for the issues related to police body cams would be provided by the Act to Establish a Legal Framework for Information Technology and statutes relating to the protection of personal information in the public sector in Quebec, such as the Act respecting access to documents held by public bodies and the protection of personal information. The federal and provincial laws also give the public a right of access to documents held by the government body, including video and audio recordings. Access to information requests must be weighed against a civilian’s right to privacy. The massive amounts of data that could soon be available would require extensive resources in order to determine what can be released without violating a person’s fundamental privacy rights. Quebec’s privacy law prevents public bodies from releasing information on request where it could cause prejudice to someone or endanger someone’s safety. The Canada Evidence Act also provides guidance regarding the collection and storage of evidence that might be used to prosecute crimes under the Criminal Code.

There is also the question of whether the Canadian privacy law framework would require the police to inform a person that they are being recorded, or whether the recording would fall under an exception under federal or provincial law. In the UK, a privacy group is concerned that people do not know they’re being filmed when they interact with police. The policy for police officers in the UK is to inform anyone who enters the video frame that they are being filmed.

It is extremely important that police forces and the third party data storage services that store the terabytes of video footage from police body cameras ensure that the footage is safe from hackers. Yesterday afternoon the hacker group Anonymous took credit for hacking the website of the Montreal police. Using cloud computing to store or process information of a confidential nature requires consideration of protection of personal information and secure management of the information. It has been noted, the secure data storage costs are high for police body camera projects. Add to that all of the access to information requests to see the videos and the additional personnel that will be required to review the footage in order to determine whether it can be released, and the costs balloon. In Seattle, the police have dealt with access to information requests by opening a YouYube channel and uploading heavily blurred videos taken from police body cameras.

Perhaps more complex are the rights of police officers. They represent the state but are also human beings. They have privacy rights too. The prohibition against invading or violating the privacy of the individual, including employees, is set out in the Quebec Charter of Human Rights and Freedoms and the Civil Code of Québec. Other privacy protections flow from collective labour agreements and public service employee legislation.

Some say that people have nothing to hide shouldn’t fear scrutiny. Another view is that we are entitled to our privacy, and the resulting right to not be spied on, unless the circumstances merit it, that is. Do the myriad cases of police brutality, borne disproportionately against people of colour, justify the recording of citizens and police by way of body cams on police officers? What of the high costs of making sure the data is safe and managed properly? Most would say the benefits outweigh the costs. I’m not sure. I worry that by enabling society to watch the watchers, we are just giving the state more tools to keep watching us.

For other recent blogs on this topic, you can read Officers wearing body cameras: the beginning of a surveillance state? and Utilisation de caméras corporelles par les policiers et inquiétudes en matière de vie privée.

This content has been updated on April 30, 2015 at 22 h 05 min.