Monday, November 19, 2018
From a privacy perspective, the movement towards police body cameras seems ominous. The prospect of a surveillance device capturing massive amounts of data concerning people’s most vulnerable moments is daunting. These concerns are compounded by the fact that there is little consensus and few hard rules on how and for whom these systems should be built and used. But in many ways, this blank slate is a gift. Law and policy makers are not burdened by the weight of rules and technologies created in a different time for a different purpose. These surveillance and data technologies will be modern. Many of the risks posed by the systems will be novel as well. Our privacy rules must keep up.
In this Article, I argue that police body cameras are an opportunity to chart a path past privacy law’s most vexing missteps and omissions. Specifically, lawmakers should avoid falling back on the “reasonable expectation of privacy” standard. Instead, they should use body cameras to embrace more nuanced theories of privacy, such as trust and obscurity. Trust-based relationships can be used to counter the harshness of the third party doctrine. The value of obscurity reveals the misguided nature of the argument that there is “no privacy in public.”
Law and policy makers can also better protect privacy by creating rules that address how body cameras and data technologies are designed in addition to how they are used. Since body-camera systems implicate every stage of the modern data life cycle from collection to disclosure, they can serve as a useful model across industry and government. But if law and policy makers hope to show how privacy rules can be improved, they must act quickly. The path to privacy law’s redemption will stay clear for only so long.