Activists on Film: Police Body Cameras and the First Amendment

Crossposted at The Huffington Post

As new studies cast doubt on claims that body cameras reduce violence by and against police, it is essential that police departments consider carefully how they implement their use. One question that needs more attention: should police use body cameras to film political activity?

U.S. law enforcement has a long history of monitoring political activists to suppress dissent. The most famous example is COINTELPRO, an FBI project to track and harass political activists that came to light in the 1970s. But law enforcement has kept up some of its old habits. Consider the Homeland Security dossiers on Black Lives Matter organizers, reports from activists that police identify leaders from Twitter and target them for intimidation, and questions about Baltimore police filming protests.

The rapid proliferation of police body cameras represents potential new accountability for police violence, but also a dangerous new avenue of surveillance. In a Brennan Center study, only 6 of the 24 departments surveyed set any rules for recording First Amendment activity, such as protests or political meetings. In an age of political unrest and grassroots activism, this is woefully inadequate. All departments should consider how to protect First Amendment rights while ensuring public safety.

To understand the stakes and possible approaches, consider two cities where similar histories have led to divergent approaches — New York and Washington, D.C.

New York’s framework for surveillance goes back to the 1980s. A challenge to the NYPD practice of keeping dossiers on political organizers and using undercover agents to monitor and infiltrate politically active organizations resulted in the “Handschu Guidelines,” court-approved limits on how the NYPD treats political activity. Post-9/11, the NYPD has used invasive surveillance techniques targeting Muslims, created intelligence digests about activists, and been sued over abuses at a 2003 anti-war protest.

This history informs the NYPD body camera policy. The policy forbids recording “[a]ttendance at events covered under the ‘Handschu Guidelines’” unless officers are taking certain “police actions.” It notes that the Handschu Guidelines require any investigation involving “[t]he exercise of a right of expression or association for the purpose of maintaining or changing governmental policies or social conditions” to be overseen by the intelligence division. This extra oversight requirement is a recognition of the risks of surveilling political activity, and the recording restriction seems designed to avoid those risks. 

Washington, D.C.’s Metropolitan Police Department (MPD) also has been repeatedly hit in court for interfering with political activity. D.C. paid substantial settlements for police mistreatment of demonstrators at the 2001 presidential inauguration and at the IMF in 2002. In 2004, the City Council declared that individuals have the right to protest without police permission, and limited mass arrests and use of force against protestors. In contrast to the NYPD, the MPD body camera policy mandates filming First Amendment events, and its First Amendment Assembly policy requires protest footage be kept for three years, much longer than the 90 days required for other body camera footage.

Where New York has prioritized avoiding the possibility that body camera footage could be used to target political activists, D.C. has tried to ensure that any illegal or abusive activity is captured.

How can departments navigate the tension between surveillance and accountability for police violence?

One answer is to follow the NYPD example and forbid recording protests unless an officer is taking police action — which should be tightly defined as making an arrest or use of force, not traffic control. The ban would include other First Amendment circumstances, so police could not record political meetings or mosque attendance. This would stop police from using body cameras to illegally surveil political activity. Knowing that police are recording can make people afraid to express a controversial viewpoint or freely practice their religion. Prohibiting recording is also the easiest way to reduce this chilling effect.

The significant downside is that police abuses — for example, at demonstrations — may not be recorded. These types of incidents are often filmed by attendees, but not always. While police would still be instructed to record any conflict, they might be less likely to capture violence or harassment if they have to press play in the moment.

There is a more nuanced option available: Record, but do not watch the recording unless a complaint is filed. This policy would require recording of all law enforcement activities associated with First Amendment activity — so an officer telling protestors to leave the street would record, but an officer passing by a political meeting would not. That footage would have sharply restricted viewing permissions. This would be a change for most departments, which allow officers to view their own body camera footage at will. It is also a compromise: It would help prevent intelligence dossiers, but would not eliminate the chilling effect on activists who may not know about or trust the viewing restrictions.

The third model is to record at protests but to forbid use of the footage for intelligence purposes. Baltimore takes this approach, forbidding use of a recording of “constitutionally protected activity” to identify any person not suspected of criminal activity or in need of assistance. This maximizes the chance of filming malfeasance without complicating implementation for police departments. However, some protestors may not believe that police will obey such a prohibition and it would be hard to prove violations. The chilling effect and potential for abuse are high.

Which of these models is best? The answer may not be the same for every department. Each city should review its police oversight structure and solicit community input on different models — making sure to balance the risks of surveillance and the need for accountability. 

Follow Brynne O’Neal on Twitter: www.twitter.com/BrynneSO.