CXO

The 'right to record' is not a question of technology, but rather power and policy

The "right to record" will gain even more attention as smartphones, wearables, and social media usage increases. Alex Howard believes this will lead to the emergence of a "sousveillance state."

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 Image: CNET

Social media, smartphones, and user-generated media are rapidly changing how humans are connected to governments, information, commerce, and one another. They also change the dynamic in how conflicts between citizens and law enforcement officers are recorded, characterized, remembered, or publicized, as the world has seen across every continent over the past decade, from Times Square to Tahrir Square.

Last week, I joined The Kojo Nnamdi Show on WAMU 88.5 to talk about fighting crime, #hashtags, police, privacy, cameras, and social media. You can listen to the archived show or read the transcript. If you do, you'll find that the conversation became quite spirited (or at least more than I expected), with heated exchanges between Mara Verheyden-Hilliard, the executive director of The Partnership for Civil Justice Fund, and Eugene O'Donnell, a professor at John Jay College of Criminal Justice and former New York City Police officer.

At issue is how social media can and has been used by police departments and those that they are sworn to protect and serve. Verheyden-Hilliard highlighted examples of pictures and video used as documentary evidence of police brutality, while O'Donnell decried activists using one or two iconic pictures as evidence of broader issues, and hijacking the dialogue. The WAMU conversation was precipitated over upset regarding a police department's announced intention to tweet pictures of a sting (they didn't) and framed by a #myNYPD Twitter campaign initiated by the New York City Police Department that didn't go quite as planned after activists jumped on the open channel, precipitating other hashtags as the backlash spread around the world.

The episode encapsulates the dynamic that now exists in public dialogue around the actions of corporations and government, where the flow of information or images cannot be constrained as easily in democratic societies, nor can the message or dialogue be controlled by public information officers in the same way. As social media has become a much bigger force in society, with many more users, more people are understanding that it's a two-way conversation between customers and companies, users and services, readers and media, students and schools, governed and governors.

As with other institutions, both public and private, police departments are learning that their brand, identity, and public image is being defined every day by the interactions increasingly documented by connected citizens, not just when the traditional press is present.

"New media and social media has made police departments transparent not from within, but from without," said Verheyden-Hilliard. "The community now, with the advent of cell phones and videos and images and a way to quickly disperse those images without having to go through an existing media structure, allowing people to be their own media. You know, you could see it years ago with the Oscar Grant killing. It was an opportunity for people to be able to show exactly what police officers and police departments are doing without being filtered through the police departments, and that has caused a huge uproar. I mean, there have been arrests all over the country, where police arrest people for filming them. So while the police want to use media and say 'it's a transparency initiative,' the fact is, they simply want it to be their message, and not necessarily reflecting the reality of people's everyday lives."

As I said in response to Verheyden-Hilliard, there are valid reasons for first responders and enforcement to be on these networks that go beyond public relations, in particular sharing information about public safety, detecting and monitoring crises, and responding to requests for help. According to Red Cross research, about a third of the public expects help to arrive within an hour if they ask for it online.

If cell towers are knocked down or overloaded, social media has become a viable second option for people to connect with friends and family to say that they're safe and well, or that they need help.

When it comes to law enforcement tweeting pictures of people who have been arrested and not convicted, however, I think it is important to ask what public interest it serves to do so. As we've seen with mug shots (which are public records released by police departments), once pictures go online and are indexed, they become associated with people's names. Last year, Google decided to stop listing some websites that would take these mug shots and charge people to have them removed. This is a significant issue in a world where most people can reasonably be expected to google you if they're planning to meet up for a date, if they're considering hiring you, or if you're applying to a school. If pictures of an arrest show up, even if you haven't been convicted, they will be prejudicial on some level. Everyone involved, from media to police to citizens, has to be thinking through the ethics of gathering, releasing, and using public records.

I thought the second half of the show went more smoothly, after Dionne Waugh, a social media specialist in the public affairs unit of the Richmond Police Department, came on air.

We dug deeper into the prospect of more police officers wearing cameras and the constitutional rights of citizens, with respect to recording their activities or those of other public officials.

"I think, it's a little bit of a balancing act," said Waugh. "I mean, we've had situations where citizens have recorded incidents with police officers and the only -- I would argue that some [of] -- those situations don't show the whole story. They show 14 seconds, a minute-14 of a situation. And they don't always give a clear picture. We're glad to have citizens out there and to share that information with us when situations happen. But it's good that we share information with them and they share information with us. No one person can control anything and that's a good thing."

It may feel like cameras are everywhere in 2014, with lapel cams on officers, dashboard cams on police cars, CCDs and traffic cameras around cities, and smartphones in the hands of residents, but more are coming with wearable computing, glasses, and helmets.

While some police departments (including New York City) are resistant to them, the use of body cameras is growing. There's now some evidence that police cameras reduce complaints and violence, which has led to editorial boards calling for more cameras on officers and some civil libertarians calling for every officer to wear a lapel cam while on duty. The American Civil Liberties Union (ACLU) supports body-mounted cameras if the right policies are in place, particularly with respect to control over recordings.

"Although we generally take a dim view of the proliferation of surveillance cameras in American life, police on-body cameras are different because of their potential to serve as a check against the abuse of power by police officers," wrote Jay Stanley, senior policy analyst at the ACLU. "Historically, there was no documentary evidence of most encounters between police officers and the public, and due to the volatile nature of those encounters, this often resulted in radically divergent accounts of incidents. Cameras have the potential to be a win-win, helping protect the public against police misconduct, and at the same time helping protect police against false accusations of abuse."

The ACLU has published a proposed policy for the use of police body-mounted cameras that would protect the privacy of citizens and preserve the video for evidence, including notice to citizens of recording, particularly after entrance into a home. The ACLU also recommends drafting a privacy policy around retention, use, subject access, and public disclosure of recordings. (Any business or enterprise recording, monitoring, or otherwise tracking employees or customers might be well served to do the same.)

The laws that govern recording police officers and public officials vary widely around the US and the rest of the world. Read this legal guidance from Harvard University's Berkman Center for Internet & Society on recording police officers and public officials.

As more people adopt connected smartphones and wearable computers, we're going to see the emergence of a "sousveillance state" that stares back at the surveillance state, underpinning the police forces and intelligence services of the world. Who is allowed to record or be recorded, retain, or publish recordings will be a question of power and policy, not technology.

Cameras will capture the interactions of law enforcement and criminals, activists and students, protestors and public meetings, just as we saw with Occupy Wall Street and at the University of California Davis in 2011.

Quis custodiet ipsos custodes? (Who watches the watchers?) Millennia later, the answer to Juvenal's question seems clear: all of us.

About

Alex Howard writes about how shifts in technology are changing government and society. A former fellow at Harvard and Columbia, he is the founder of "E Pluribus Unum," a blog focused on open government and technology.

11 comments
Tim Murray
Tim Murray

If we could record the authority figures without fear of harassment then it would be ok for them to record us, sadly this isn't the case.

dogknees
dogknees

"Who is allowed to record or be recorded, retain, or publish recordings will be a question of power and policy, not technology."


It would seem to me that what is "allowed" is always a matter of law The ability to do so neither grants nor denies any right of use.

Jeff Gebhart
Jeff Gebhart

Maybe if people understood they could be recorded at any time they wouldn't be such jackasses. Shame them into being decent people...

Shawn Quinn
Shawn Quinn

The technology is already there. Everyone has it. It is about power. Truth is always the enemy of power. And the right to record secures your ability to prove the truth of what really happened any time.

Jim Ballard
Jim Ballard

I do not wish to be filmed by a person with a camera unless they get my permission first.

Paul Williamson
Paul Williamson

It's purely a question of whether the person you are recording has given you their consent to record them. In most cases, there should be a clear indication that recording is taking place.

Rain Howard
Rain Howard

I think it depends on the intent of the person or agency doing the recording.

stevec
stevec

We should make the politicians wear cameras, too.

digiphile
digiphile

That may be a pure question but its legality is full of grey, as far as I can tell. Generally speaking, if you are in a public place, you have to right to photograph or videotape anything that is in public view, which means someone doesn't need your permission, although it's polite to ask. https://www.aclu.org/free-speech/know-your-rights-photographers


The statutes that govern recording in the same public places vary by state or country. They also vary with respect to filming public officials or reasonable expectation of privacy. Recording a private conversation without knowledge or permission may expose you to wiretapping statutes, which is why capturing film without consent might be legal but the audio from it may not be. http://www.dmlp.org/legal-guide/newsgathering-and-privacy

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