Public Meeting Notice  Privacy and Record-Keeping Subcommittee Meeting (Law Enforcement Body Camera Task Force)

PRIVACY AND RECORD KEEPING SUBCOMMITTE

LAW ENFORCEMENT BODY WORN CAMERA TASK FORCE.

Date: November 18, 2021

Time: 12:00 Noon – 1:00PM

Place: Microsoft Teams (Virtual Meeting – access link posted publicly on mass.gov)

Subcommittee Members Present:

Alyssa Hackett, Esq., Massachusetts Criminal Defense Lawyers

Fred Taylor, National Association for the Advancement of Colored People

Emiliano Falcon-Morano, Esq., American Civil Liberties Union

Hillary Farber, University of Massachusetts School of Law

Subcommittee Members Absent:

Sgt. Tim King, Massachusetts Coalition of Police

Chief Steve Sargent, Worcester Police Department

Guests:

Stephanie Everett, Office of Police Accountability and Transparency, City of Boston

Stephanie Lessing, PhD candidate, University of Massachusetts - Amherst

Staff: Daniel Nakamoto, EOPSS (Board Advisor)

There were several rounds of introductions as people joined the meeting.  The meeting was called to order at 12:05.  Daniel indicated that one of the subcommittee members had submitted some edits just minutes prior to the meeting and he had not had time to review.  The subcommittee agreed to defer approval of the prior meeting to the next meeting. 

1. STANDARDS REGARDING THE USE OF FACIAL RECOGNITION OR OTHER BIOMETRIC-MATCHING SOFTWARE OR OTHER TECHNOLOGY TO ANALYZE RECORDINGS

Daniel noted that while the Task Force had decided to defer consideration of this item until meeting with legislative leads of the Special Commission on Facial Recognition, Daniel did some prep work for the Subcommittee. He could not find a local law enforcement policy on facial recognition. The Massachusetts State Police does not use the software with its body-worn cameras recordings and therefore does not have a policy regarding its use.   The Massachusetts Chiefs reported that they were not aware of any agency using the softwear.

The American Civil Liberties Union of Massachusetts’ model provisions state “Under no circumstances shall body camera video be subject to, either in real time or after the footage is captured, any technological enhancements, automated analysis, or analysis of biometric measures, including, but not limited to iris or retina patterns or facial characteristics.”  The International Association of Chiefs of Police’s Guiding Principles for Law Enforcement’s Use of Facial Recognition Software prescribes that policies must be accordance with the applicable laws and policies, protect constitutional rights, results returned in a facial recognition are ranked on computational analysis of the similar features, for investigative lead generation purposes only, and are not considered as positive identification, and requires training.

There was much discussion on this issue. There was interest in getting a sense of member views on this issue.  While the software is not used by the police now, it could be used in the future.  Some felt that they needed to learn more about the issue before developing a position on it.  Others thought we should wait to hear from the Special Commission.  It was noted that BWCs were just audio-video recording devices and the software itself is in servers and the cloud.  Another expressed grave concerns about this dangerous technology and government expansion of citizen surveillance.  Finally, House Bill No. 135 An Act to regulate face surveillance was recently presented.  It makes it unlawful for a public agency to have a biometric surveillance system and established guard rails for the State Police on using the technology or request of the Federal Bureau of Investigation to perform a search by issuance of a warrant.

2. TYPES OF ENCOUNTERS AND INCIDENTS TO RECORD

Local law enforcement and State Police policy and procedure were reviewed for details on what police currently record.  There was significant similarities of what is recorded.  Using the State Police listing in black, differences from local authorities are noted in red.

• Vehicle Stops, motorists assists, and crash investigations;
• Investigative person stops:  field interview observations, consensual stops, or articulable reasonable suspicion stops, or stops supported by probable cause;
• All dispatched calls for service involving contact with civilians;
• Initial responses by members, including on­site detentions, investigations pursuant to an arrest, arrests, and initial suspect interviews on scene;
• Traffic safety and sobriety checkpoints, while interacting with the public, and during all field sobriety testing;
• Pat-frisks, searches of persons incident to arrest (if not already activated), consents to search, and inventory searches;
• Prisoner transports;
• K-9 searches (applicable to BWC equipped K-9 members only);
• All searches for lost/missing persons or criminal suspects (unless the incident or event is of such duration that deactivating the BWC/CMC is necessary to conserve available recording time …);
• Incidents of emergency response driving and pursuit driving, however a BWC recording need not be used if Cruiser-Mounted Camera is recording;
• When a member reasonably believes a lawful/peaceful crowd control public event that would not otherwise require recording may transition, or does actually transition, into unlawful activity;
• Any contact that becomes adversarial, including a Use of Force incident;  or
• Any other civilian contact or official duty circumstance that the member reasonably believes should be recorded in order to enhance policing transparency, increase public trust and police­community relations, or preserve representations of member ­civilian interactions.
• Witness and victim interviews;
• When ordered by a supervisor.

The International Association of Chiefs of Police policy recommendation is that “Officers shall activate the BWC to record all contacts with citizens in performance of their duties.”  The American Civil Liberties Union of Massachusetts recommend “Both the video and audio recording functions of the body worn camera shall be activated whenever an officer responds to a call for service or at the initiation of any other law enforcement or investigative encounter between the officer and a member of the public, except that when an immediate threat to the officer’s life or safety makes activating the camera impossible or dangerous, the officer shall activate the camera at the first time reasonable opportunity to do so.”

There was discussion.  There did not appear to be issues on when to record but concerns were raised about when not to record or when recording is discontinued.  If the recording is discontinued, some justification should be required.  Daniel noted that in his review of policies and procedures, police departments routinely require a verbal explanation in the recording and a notation in the written report.

This legislative mandate focused on the “types of encounters and incidents to record.”  An item for discussion at the next meeting is “When a camera should be activated and when to discontinue recording;” The issue on where not to record was not among those listed in the Task Force legislation, but maybe something the Subcommittee may want to address.

3. NOTICE REQUIREMENTS

A review of 12 policy and procedures in Task Force One Drive collection showed all with notice requirements.  One agency used the “may” instead of shall.  The International Association of Chiefs of Police police recommendation is that “Whenever possible, officers should inform individuals that they are being recorded.”  The American Civil Liberties Union of Massachusetts recommend that “As close to the start of the encounter as is reasonably possible, an officer who is wearing a body camera shall notify the subject of the recording that they are being recorded by the body camera.”

Current local practice already conforms to this mandate. 

The next meeting on December 8^th at 12:00 Noon.  The meeting was adjourned at 12:53 PM.