CONFIDENTIAL

Office of the Police Attaché

Liaison Office in US West Coast
447 Sutter Street, San Francisco, CA 94108 USA

MEMORANDUM

FOR : The Chief of Police

FROM : Police Colonel Eric Noble _________

SUBJECT : Special Body Worn Camera and Privacy Rights

DATE : July 7, 2019

1. This pertains to the following issues and concerns about the use of Special

"Body Worn Camera" (SBWC) for the perusal of the Chief of Police.

a) Does it violate the civilian's right to privacy under the U.S. and/or California

Constitutions when law enforcement "secretly" capture the faces, voices, and

DNA of subjects within 10 feet of the patrol officers, when said officers are

acting within the course and scope of their duties during consensual

encounters, detentions, and/or arrests?

b) If the SBWC's are purchased, should the policy and procedures manual

compel patrol officers to obtain consent from each subject before activating

the SBWC? Why or why not?

2. On the first concern, the contention is that privacy rights under federal or state

rules are not violated. The capture of the faces, voices, and DNA of subjects is only done

within 10 feet and in the course of the patrol officers' duties during consensual encounters,

detention, and arrests. This is protected and supported by the following:

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a) Body cameras only record discrete police-civilian interactions in public and

are not used to track individuals over a longer period. Hence, a Fourth

Amendment challenge would seem highly unlikely to be successful. 1

b) To prevent issues on privacy rights, the protocols recommended by the Police

Executive Research Forum (PERF) in 2014 for agencies using BWCs be

adopted. Some of the PERF recommended rules for adoption2 are:

 Officers should be required to inform subjects when they are being

recorded unless doing so would be unsafe, impractical, or impossible.

 Officers should be required to obtain consent before recording interviews

with crime victims, regardless of whether consent is required under state

law.

 Officers should have the discretion to keep their cameras turned off during

conversations with a crime witness and members of the community who

wish to discuss or report neighborhood crime activity.

3. On the second issue, officers should be strongly encouraged to obtain consent

from each subject before activation SBWC for reasons of transparency and keeping the trust

of the community. However, in the exigency of the service, recording without consent can be

justified if the PERF protocols are observed. The following are some circumstances and their

justifications:

a) If privacy concerns outweigh the legitimate interests of law enforcement,

recording without consent may be justified. 3 However, the Bureau of Justice

1
Cf. United States v. Stile, No. 1:11-cr-00185-JAW, 2013 WL 6198179, at *3 (D. Me. Nov. 27, 2013) (rejecting a
challenge to the constitutionality of dashboard cameras on the grounds that they simply capture a law
enforcement interaction occurring in public).
2
Kawamoto, D. (2018, August 3). Cops Wearing Cameras: What Happens When Privacy and Accountability
Collide? Retrieved July 7, 2019, from https://www.govtech.com/biz/Cops-Wearing-Cameras-What-Happens-
When-Privacy-and-Accountability-Collide.html
3
Community Stakeholders - Bureau of Justice Assistance. (n.d.). Retrieved from
https://www.bja.gov/bwc/Topics-Community.html

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Assistance encourages officers wearing BWC to be sensitive and respectful of

the privacy and dignity of those who are being recorded. If subjects request

that the recording be stopped, then it should be stopped.4

b) Washington State Attorney General5 opined in 2014 that Privacy Act did not

require law enforcement officers to stop recording a conversation at the

request of a citizen since such conversations were not private. However, it is

wise to adhere to the policy of immediate deactivation after the incident. It

will prevent potential conflict, and the respect of privacy shall serve as a

confidence-building measure between cops and citizens.

4. For information.

4
Training - BJA National Body-worn Camera Toolkit. (n.d.). Retrieved from https://www.bja.gov/bwc/Topics-
Training.html
5
Dwyer, T. (2017, March 23). When body-worn cameras become a matter of the courts. Retrieved June 28,
2019, from https://www.policeone.com/legal/articles/320408006-When-body-worn-cameras-become-a-
matter-of-the-courts/

CONFIDENTIAL