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: January 14, 2022

Time: 12:00 Noon – 1:00 PM

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

Hillary Farber, Esq., University of Massachusetts School of Law

Sgt. Tim King, Massachusetts Coalition of Police

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

 

Subcommittee Members Absent:

Chief Steve Sargent, Worcester Police Department

 

Staff: Daniel Nakamoto, EOPSS (Board Advisor) & Suleyken Walker (Task Force Counsel)

 

1.  

 

7. standards for the identification, retention, storage, maintenance and handling of recordings from body cameras, including a requirement that recordings be retained for not less than 180 days but not more than 30 months for a recording not relating to a court proceeding or ongoing criminal investigation or for the same period of time that evidence is retained in the normal course of the court’s business for a recording related to a court proceeding.

 

17. a retention schedule for recordings to ensure that storage policies and practices are in compliance with all relevant laws and adequately preserve evidentiary chains of custody and identify potential discovery issues; and

 

Daniel requested that Suleyken Walker attend to provide advice on the retention schedule and on an earlier query regarding a Fourth Amendment issue.  She outlined a possible approach to understanding the requirements of the law on the former issue.

Possible approach:

• standards for the identification, retention, storage, maintenance and handling of recordings from body cameras           

 

• the retention schedule for recordings (this is limited by the terms of para. (vii) )

 

• • the schedule must be at least 180 days (6 months minimum)

 

• • • Subcommittee may want to consult with supervisor of public records staff for guidance on municipal retention schedules.  What is normal?

 

• • The schedule cannot exceed 2.5 years (6 months less than statute of limitations), except that

 

• • • May be more than 2.5 years if court proceeding, or for the same period of time that evidence is retained in the normal course of the court’s business for a recording related to a court proceeding, or

 

• • • • Subcommittee may want to consult with staff at Trial Court for guidance

 

• • • • Subcommittee may want to consult with the MDAA (District Attorneys Association) for guidance; and CPCS

 

• • • Could be more than 2.5 years if ongoing criminal investigation

 

• • • • Subcommittee may want to consult with the Massachusetts District Attorneys Association (MDAA) and Committee for Public Counsel Services (CPCS) for guidance; also seek guidance from supervisor of public records. 

 

Recommended regulations for adequately preserving evidentiary chains of custody and identify potential discovery issues:        

Subcommittee may want to consult with the MDAA and CPCS for guidance.  There are members of both organizations on the BWC Taskforce. Daniel agreed to follow up. 

Suleyken also suggested the Subcommittee reach out to the Supervisor of Records to inquire about their municipal retention schedules and where body worn camera and dashcam recordings fall.  Are there any exemptions of these recordings?  Daniel agreed to follow up.

There was discussion, on the topic of having language where recordings could be extended beyond the retention (beyond cases involved in a court proceeding or criminal investigation) by request.  It was noted that recording software preserves chain of custody records.  The Subcommittee recommendation to extent retention periods were reviewed.  It was noted that perhaps the simplest way to address this issue was to recommend compliance with existing laws and regulations.

The next order of business was the Subcommittee question about Fourth Amendment protections: For purposes of the Fourth Amendment of the United State Constitution, Article 14 of the Massachusetts Declaration of Rights, and the Massachusetts Wiretapping statute, is there a violation of rights if (a) a police officer enters a home prior to being given explicit permission to film inside the home, or (b) enters a home despite the resident indicating that he or she wants the officer to stop recording.  The Subcommittee discussed implications Comm. V. Yusuf on this issue.  Many concerns were raised about consent, non -consent, when to record and when to stop recordings and incidents without a recording.  The possibility of turning off the camera but keeping the audio going was discussed.  Concerns about the limitations of a voice only recording were noted.  It was noted that video recordings have limitations and not a panacea. 

Suleyken will research whether a police officer entering a home who did not receive consent to record would be violating the wiretap statute.

Moving on to the next order of business,

 

Standards for the identification, retention, storage, maintenance, and handling of recordings from body cameras, including a requirement that recordings be retained for not less than 180 days but not more than 30 months for a recording not relating to a court proceeding or ongoing criminal investigation or for the same period of time that evidence is retained in the normal course of the court’s business for a recording related to a court proceeding

 

2. Storage of recordings

 

The Technology and Procurement Subcommittee is addressing “standards for the security of the facilities in which recordings are kept.”  That Subcommittee was advised by the Chief Information Security Officer for the Massachusetts Executive Office of Technical Support Services, that “prem or cloud storage, should comply with the Security Standards issued by Criminal Justice Information Services, Federal Bureau of Investigation.”  This recommendation was adopted by the Subcommittee.

 

The Subcommittee agreed to adopt the Technology and Procurement Subcommittee  recommendation: that premises or cloud storage, should comply with the Security Standards issued by Criminal Justice Information Services, Federal Bureau of Investigation.

 

3. Maintenance and handling of recordings

 

Municipal Body Worn Camera policies and procedures focus its use and to a lesser degree on maintenance and storage.  Video recordings appear to be generally managed under property and evidence control policies and procedures.  Reviewed several department property and evidence control policies.  In general, police departments download videos at the end of shifts, prohibit altering/changing/deleting of recordings, label each recording including assignment of an incident number, maintain a log, and conduct audits.

 

International Association of Chiefs of Police:

E. Storage

1. All files shall be securely downloaded periodically and no later than the end of each shift.  Each file shall contain information related to the date, BWC identifier, and assigned officer.

2. All images and sounds recorded by the BWC are the exclusive property of this department.  Accessing, copying, or releasing files for non-law enforcement purposes is strictly prohibited.

3. All access to BWC date (images, sounds, and metadata) must be specifically authorized by the CEO of his or her designee, and all access is to be audited to ensure that only authorized users are accessing the data for legitimate and authorized purposes.

 

American Civil Liberties Union of Massachusetts:

€ Officers are prohibited from accessing, copying, or releasing body camera video footage except for office law enforcement purposes.  All accessing, copying, or releasing of body worn camera video footage that is undertaken for official law enforcement purposes must be logged.  Officer shall never use a camera phone or other secondary recording device to make a copy of a body camera video for any purpose.

(f) 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 indicators, including but limited to iris or retina patterns or facial characteristics.

(g) Video footage shall be subject to the public inspection requirements of the Massachusetts public records (M.G.L c/4s.7 cl. 26; M.G.L. c.66), but otherwise shall not be divulged or used by the Department for any commercial or non-law enforcement purpose.

(h) Video footage made public pursuant to a public records request, or another legitimate law enforcement purpose shall be redacted to obscure the identifies of minor children, and to obscure the identities of other individuals when the release of the video footage would unreasonably, substantially, or seriously interfere with the individual’s privacy.

(i) Where the Department authorizes a third party to act as its agent in maintaining body camera footage, the agent shall not be permitted to independently access, view, or alter any video footage, except to delete videos as required by law or agency retention policies.

 

The New Jersey Office of the Attorney General issued a Body Worn Camera Policy (May 2021 Version) that provides governing principles for local law enforcement agencies.  New Jersey requires law enforcement agencies to use BWCs in their daily law enforcement functions.  Daniel found their section on secure storage and accessibility of BWC recordings to be comprehensive and well written.  Steve McCarthy concurred and made some minor edits to fit Massachusetts which follows.  His edits are shown.  Due to length of the narrative below, the Subcommittee deferred discussion of this issue to the next meeting.

 

Standards to Ensure Secure Storage and Accessibility of BWC Recordings

9.1 Procedures to Protect Integrity of BWC Recordings. Every department shall establish and maintain a system and procedures to ensure the integrity and proper handling and storage of all BWC recordings. This system shall include provisions to: (a) ensure that all recordings are uploaded to a secure data storage system in a timely fashion; (b) prevent tampering with or deletion of recorded data both before and after downloading from the BWC and uploading to the storage system; (c) prevent unauthorized access to stored BWC recordings; (d) document all instances where BWC recordings are accessed, viewed, copied, disseminated, or deleted; and (e) permit auditing of all instances where BWC recordings are accessed, viewed, copied, or deleted.

I think this is fine

9.2 Capacity to Locate Specific BWC Recordings. Every department shall establish and implement a system that permits the agency to locate and retrieve all recordings associated with a specific incident/event, investigation, case, or criminal charge. Accordingly, every department shall be required to develop and maintain a BWC control ledger or log, which may be computerized. 9.2.1 Every department shall establish and implement a system to ensure that relevant BWC recordings are provided in discovery in a timely fashion. The system established by the agency should include a provision to ensure that police arrest/incident/continuation reports indicate whether the incident or investigative activity described in the report was electronically recorded by a BWC. Police reports should, when feasible, indicate the corresponding BWC control ledger/log number, and the BWC control ledger/log should cross-reference the incident case number if there is one. (*Not every BWC recording will have an incident case number). Copies of BWC recordings made for the purpose of complying with the Commonwealth’s discovery obligations shall be provided to the prosecutor in a commonly available media format.

Minor edits

9.3 Provisions to Identify (“Tag”) Recordings That Raise Special Privacy or Safety Issues. To identify BWC recordings that may raise special privacy or safety issues, every department that deploys BWCs shall establish and implement a system that permits a notation (i.e., “tagging”) to be made when the recording: (a) captures the image of a victim of a criminal offense; BODY WORN CAMERA POLICY | May 2021 21 (b) captures the image of a child; (c) was made in a residential premises (e.g., a home, apartment, college dormitory room, hotel/motel room, etc.), a school or youth facility, a healthcare facility or medical office, a substance abuse or mental health treatment facility, or a place of worship; (d) captures a conversation with a person whose request to de-activate the BWC was declined; (e) captures a special operations event or execution of an arrest and/or search warrant where confidential tactical information (e.g., verbal codes and hand signals used to give direction to officers, techniques for interior movements and clearing rooms during execution of a warrant, techniques for convincing persons to open doors during warrant execution, etc.) may have been recorded; (f) captures the image of an undercover officer or confidential informant; or (g) captures the screen of a police computer monitor that is displaying confidential personal or law enforcement sensitive information. See also Section 7.1 (requiring notice to the prosecutor when a BWC captures the image of a patient at a substance abuse treatment facility). Subject to the provisions of Section 12 of this Policy, an agency’s policy, standing operating procedure, directive, or order issued pursuant to Section 3.1 may specify additional circumstances when a BWC recording will be “tagged.”

This gets confusing as “Tags” are commonly used to categorize the event, not make a special notation. 

I see what they are driving at but I’d rewrite it as something like the following:

9.3 Provisions to Identify Recordings That Raise Special Privacy or Safety Issues. To identify BWC recordings that may raise special privacy or safety issues, every department that deploys BWCs shall establish and implement a system that permits an event notation to be made when the recording: (a) captures the image of a victim of a criminal offense; (b) captures the image of a child; (c) was made in a residential premises (e.g., a home, apartment, college dormitory room, hotel/motel room, etc.), a school or youth facility, a healthcare facility or medical office, a substance abuse or mental health treatment facility, or a place of worship; (d) captures a conversation with a person whose request to de-activate the BWC was declined; (e) captures a special operations event or execution of an arrest and/or search warrant where confidential tactical information (e.g., verbal codes and hand signals used to give direction to officers, techniques for interior movements and clearing rooms during execution of a warrant, techniques for convincing persons to open doors during warrant execution, etc.) may have been recorded; (f) captures the image of an undercover officer or confidential informant; or (g) captures the screen of a police computer monitor that is displaying confidential personal or law enforcement sensitive information. Such notation must be permanently attached to the recorded event. Before any release of a recorded event with a special privacy or safety issue notation, the event shall be reviewed by the department’s legal staff trained to appropriately assess those issues, and if necessary, the recorded event shall be redacted accordingly before release.

9.4 Approval for Access to “Tagged” BWC Recordings. A BWC recording tagged pursuant to Section 9.3 shall not be accessed, viewed, copied, disseminated, or otherwise used without first obtaining the permission of the County Prosecutor or designee, or the Director of the Division of Criminal Justice or designee. The County Prosecutor or Director may authorize the law enforcement executive, and one or more superior officers or duty positions (e.g., head of the detective bureau) identified by the law enforcement executive, to grant permission pursuant to this Section to access, view, copy, disseminate, or otherwise use BWC recordings tagged pursuant to Section 9.3. See also Section 10.1 (specifying the purposes for which access to a BWC recording is permitted).

This section would not really be necessary with the previous provision of “Before any release of a recorded event with a special privacy or safety issue notation, the event must be reviewed by the department’s legal staff trained to appropriately assess those issues, and if necessary the recorded event must be redacted accordingly before release.” However, it might be appropriate to add the following:

New Section: Release of Recordings involved in a criminal investigation or court proceeding.

Release of a BWC recording that is the subject of an active criminal investigation/prosecution.

Approval for release of a BWC recording that involves the subject of an active criminal investigation or prosecution shall not be given without first obtaining the permission of the Attorney General/District Attorney of jurisdiction or designee, or the department’s chief executive or designee.

9.5 Compliance with Discovery Obligations Relating to BWC Recordings That Might Expose Officers or Other Persons to Danger. If disclosure of a BWC recording as part of the Commonwealth’s discovery obligations in a prosecution might present a danger to any officer or civilian (e.g., reveal an undercover officer, confidential informant, surveillance site, etc.), or might reveal confidential tactical information the disclosure of which might jeopardize future operations or officer safety (e.g., verbal codes or hand signals used to communicate information or instructions, techniques for interior movements and clearing rooms during execution of warrant, techniques for convincing persons to open doors during warrant execution, etc.), the Attorney General/District Attorney of jurisdiction or designee, shall, in the exercise of sound prosecutorial discretion, take such steps as are appropriate and authorized by law and/or Court Rule to protect the information from disclosure, such as by seeking a protective order from the court.

Minor edits

9.6 Third-Party Storage and Maintenance. If a law enforcement agency authorizes a third party to act as its agent in maintaining recordings from a BWC, the agent shall be prohibited from independently accessing, viewing, or altering any recordings, except to delete recordings as required by law or agency retention policies.

This is fine.

4. Status Review

 

1. Privacy & Record Keeping/Data (including public records)

 

1. standards regarding the use of facial recognition or other biometric-matching software or other technology to analyze recordings obtained through the use of such cameras; provided, however, that such standards may prohibit or allow such use subject to requirements based on best practices and protocols;  Deferred

 

2. the types of law enforcement encounters and interactions that shall be recorded and what notice, if any, shall be given to those being recorded  Reviewed

 

3. when a camera should be activated and when to discontinue recording

 

camera must be equipped with pre-event recording, capable of recording at least the 30 seconds prior to camera activation  Reviewed

 

4. standards for the identification, retention, storage, maintenance and handling of recordings from body cameras  Reviewed

 

5. a retention schedule for recordings to ensure that storage policies and practices are in compliance with all relevant laws and adequately preserve evidentiary chains of custody and identify potential discovery issues;

 

1. 1. requirement that recordings be retained for not less than 180 days but not more than 30 months for a recording not relating to a court proceeding or ongoing criminal investigation or for the same period of time that evidence is retained in the normal course of the court’s business for a recording related to a court proceeding  Reviewed but not complete

 

In in the interests of time, Daniel will start drafting the Subcommittee response to the above items for review by the Subcommittee.

 

5. Other issues for review raised by members

 

1. 1. Implementation of Commonwealth v. Yusuf:

Should the BWC task force make recommendations for best practice on how to ensure officers cannot view footage for a separate criminal investigation as was held to be unconstitutional in Yusuf?

1. 2. Dealing with notice and camera activation and deactivation in different use cases: entering a private residence, interacting with an apparent crime victim, interacting with a person that seeks to be anonymous and is reporting a crime, etc.
   3. Recommending a prohibition for surreptitious use of camera?

 

1. 4. should there be a sanction for officers’ failure to comply with non-recording or recording? What should that look like? 

 

1. 5. Who should have access to BWC footage and how should that access be managed?

 

1. 6. Redaction issues-  we heard yesterday that within the State Police sometimes it is automated via the software but also human use too and that there is always an unredacted version on file until the footage is destroyed – some of this backs into privacy in terms of who and when public can see footage.

 

1. 7. other privacy protections?

 

1. 8. The use of BWC for purposes of collection of intelligence information and surveillance of First Amendment-protected activities (e.g., protests)
   9. Use of BWC in schools and under what circumstances.

 

The list was reviewed and will be discussed in future meetings.

6. Next Meeting

The next meeting was scheduled for January 19^th at 1:00 PM.  (Rescheduled for January 26^th at 1:00 PM)

The meeting was adjourned at 1:10 PM.