Police body cameras are the hot new item on the procurement “wish lists” of law enforcement agencies at all levels of government. Following well-publicized police encounters with citizens throughout the United States, hundreds of millions of dollars are being spent to provide law enforcement with this new technology. Taser, Wolfcom, Vievu and other manufacturers are engaged in intense battles to capture this burgeoning market. Consistent with the nationwide trend, law enforcement agencies across Florida have begun equipping their officers with body cameras.
Myriad legal issues will follow as these cameras become mainstream and challenges to them reach the courts. The existence of legal challenges does not mean the technology is problematic, or that it shouldn’t be implemented. It is just to be expected as our slow-moving legal system plays catch-up to this technology. Enter the 2016 Florida Legislature and its effort to address this issue.
This past session, the legislature confronted the issue of police body cameras and their use in Florida—sort of. That is, it acknowledged that these cameras were being used by law enforcement, could be used by law enforcement, and even said that their use should be pursuant to uniform procedures throughout the state. But the legislature gave no meaningful direction to the agencies that will have to implement this law and in doing so create the policies and procedures that the law now requires.
The stated purpose of Florida’s shiny new body camera law (Section 943.1718, Fla. Stat.) is to make policies and procedures governing the use of police body cameras uniform throughout the state. But the law does not require any law enforcement agency to equip its officers with body cameras. Rather, it only requires that those agencies that do elect to use body cameras implement policies and procedures governing certain aspects of their use. The new law generally provides that agencies that use body cameras must have procedures for the use, maintenance, and storage of the cameras themselves and the data they record. Specifically, those procedures must address:
- Limits on which officers are permitted to wear cameras;
- Limits on the encounters and activities in which officers are permitted to wear body cameras; and,
- Guidelines on the proper storage, retention, and release of audio and video data recorded by body cameras.
Any agency that uses body cameras must ensure that all personnel who wear, use, maintain, or store body cameras, or the data from the cameras, are trained in the agency’s policies and procedure. This all sounds concrete on the surface, but the devil is always in the details.
Despite the legislature’s attempt to bring uniformity to this burgeoning area of law enforcement technology, this law may have the exact opposite effect. Indeed, Florida law now compels law enforcement agencies across the state to design and implement their own policies concerning the use of police body cameras in their jurisdiction without providing any of the parameters that would be needed to (1) create uniformity, or (2) ensure that the policies and procedures that are implemented will sustain the legal challenges that will follow. This has the potential to create a patchwork of hundreds of individual policies that vary from jurisdiction to jurisdiction, and even between agencies within the same geographical areas (e.g., sheriff and city police operating in the same county) concerning how body cameras are used, and how the data from them is preserved, handled, stored, and used in later prosecutions. Indeed, this new law may raise more questions than it answers.
Although the legislature did not provide them with meaningful guidance, law enforcement agencies are not entirely on their own in trying to comply with this new aspect of Florida law. Agencies procuring body camera systems can draw on established resources like those available from the International Association of Chiefs of Police, National Institute of Justice, the ACLU, and other industry groups that are ahead of the curve concerning this rapidly evolving technology. Agencies would also do well to obtain a legal audit of their proposed policies and consult with counsel to identify and fix the policies that are most likely to draw legal challenges. Indeed, some areas that need policy design may not be so obvious.
For example, one overlooked area concerning body cameras is what to do if the camera’s data is breached. As with any other theft, response time is critical. The Florida legislature recognized this when it implemented data breach notification obligations in Section 501.171, Fla. Stat., which expressly applies to government agencies. Although this law does not create a private right of action for non-compliance, traditional causes of action may still lie for an agency’s negligent response to a beach concerning camera data. Whether agencies may be held liable if they are unprepared to respond to such a breach remains an open question—for now. But this is certain to be the subject of future litigation. A well-designed data breach response policy is therefore an important feature of all agency body camera policies established under Section 943.1718.
In sum, police body cameras will soon be the norm in law enforcement agencies across the United States. Florida law now mandates that policies and procedures be in place if cameras are used in this state. But the law leaves agencies to figure out what those procedures should be. Agencies must be diligent in crafting their policies to avoid challenges that will impose legal costs, compromise prosecutions, and create other liability should the crooks find a way to steal the evidence from the digital vault.