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Police privacy law complicates plan for body cameras

Taser's Axon Flex camera fastens to eye-ware and captures images (including of you!) in an officer's field of view. Credit: Credit: Taser

On Wednesday afternoon, in a meeting of the public safety, civil rights and technology committee at Seattle City Hall, little known police intelligence auditor Mark Boerner answered questions about his process for holding the Seattle Police Department accountable for the information they collect.

A tall and soft-spoken man with grey hair, Mr. Boerner is a volunteer whom no councilmember seemed ready to offend. He took on the role of auditor in his retirement after a long and decorated career as a lawyer. He has held the position for the last ten years. The position of police intelligence auditor, created by way of a 1979 surveillance ordinance, is responsible for examining recorded information, be it through photographs or dossiers, to be sure that it is only an account of criminal activity, not of political, religious or sexual affiliations.

Simply, according to Lt. Eric Barden of the SPD, the role of the auditor is to act as “a safeguard that the police department complies with the intelligence ordinance.”

As first reported by The Stranger and later confirmed by Crosscut, the role of the police intelligence auditor was a part of the Police Investigation Ordinance created in 1979. The ordinance was a reaction to Seattle police gathering information on political dissidents throughout the 60s and 70s. Police would sometimes go undercover, making note of both sexual and religious preferences, even when not relevant to any crime.

When the police dossiers about individuals were made public, outrage over the profiling and alleged infiltrations of these political groups led Seattle to become the first American city to restrict what kinds of intelligence police could legally gather. According to a training manual on the ordinance for Seattle police officers, it explicitly restricts “the Seattle Police Department from collecting political, religious, and private sexual orientation information unless it is relevant to a crime or the investigation of a criminal act.”

Under the intelligence ordinance, the police must obtain authorizations to gather information regarding sexual, political or religious affiliation. Sexual affiliation is only considered relevant if there is a “felony with sexual motivation,” “violation of law related to sex,” or “fugitive information for arrest purposes.” For political or religious affiliations, authorization to collect information is only granted in rare circumstances or for “dignitary protection.”

Getting authorization is, as Boerner says, “like getting a search warrant.” Even in clear-cut cases, investigators are supposed to get authorization to record information in advance if they suspect religious, political or sexual involvement. As a hypothetical, Boerner used Wednesday’s attacks in France, which could be seen as either religiously or politically motivated.

Mr. Boerner’s position is unique to the department, but appears to have been largely forgotten by the city. Few councilmembers seemed to know very much about the auditing process. “Perhaps this procedure has not been as scrutinized as it should be,” Harrell said Wednesday. “It’s high time we look at what the PD does with sensitive information.”

The position was made more public by Stranger writer Ansel Herz in his article, “Is the Seattle Police Intelligence Auditor Doing His Job?” The article appears to have spurred Wednesday’s meeting: Committee chair and councilmember Bruce Harrell cited it for bringing the issue to his attention.

Wednesday’s discussion largely centered on whether or not police were breaking the rules by allegedly taking pictures of peaceful protestors during recent Ferguson protests at University Village. (“If demonstrators are not acting unlawfully,” said Boerner, “police cannot photograph them.”)

But the re-discovered ordinance also raises serious questions about the logistics of Seattle’s forthcoming police body camera program.

Namely, does the SPD’s Body Worn Video Program fall under the legal umbrella of the Police Investigation Ordinance? And, if so, how should the SPD ensure officers don’t use body camera footage to collect information prohibited under the ordinance?

The program is currently in its pilot stage, with only twelve volunteer officers wearing the cameras. According to a December statement released by Harrell, who is the lead on the project, the city and SPD are hoping for “full deployment of the body cameras for the Seattle Police Department in 2016.”

The body camera pilot program sets similar parameters as the 1979 ordinance: Cameras may only be used during criminal activity, arrests or seizures, witness questioning, traffic stops and response to 911 calls. Also, like the ordinance, the cameras may not be used to record people who are “lawfully exercising their freedom of speech, press, association, assembly, religion, or the right to petition the government for redress of grievances.”

But as it’s written now there are disconnects between the pilot body camera program and the ’79 ordinance. Officers with body cameras do not need to seek authorization in advance to record instances of a political, religious or sexual nature as the ’79 ordinance requires. The body camera program also does not specifically require an auditor to examine information gathered from body camera videos.

Additionally, the body camera program policy says, “protected activity which is unintentionally captured while recording an event as otherwise required by this policy is not a violation.”

When contacted for comment, SPD’s Senior Counsel explained that the body worn camera program may be linked to in car video — which is excluded from the privacy act. “It is possible that body worn camera videos are exempt from the intellegince ordinance,” he said. However, he went on to say “that is not clear.”

Boerner, on the other hand, said pretty much the opposite. When asked whether he thought body camera footage would be included under the 1979 ordinance, he said, “The ordinance certainly doesn’t exempt that sort of thing.”

If the intelligence gathered from the body camera program were seen to fall under the ’79 ordinance, as Boerner suggests it could, then technically he would be responsible for auditing that information. Boerner said no one has approached him about taking on that job. Asked if he would consider the position if offered, he said, “There isn’t any way to audit that. I can’t conceive of a way to audit all that information unless I had a staff of dozens.”

In ’79, auditing information meant examining dossiers. It was harder to accidentally collect information. But today, especially when considering body cameras, it’s nearly impossible to avoid collecting information. And sifting through that material is complicated.

As the sole auditor, and working as a volunteer, Boerner is already only able to examine a very small percent of the police cases currently coming in. To expect him to audit a larger sample would be unrealistic, particularly as more and more information goes digital. “I’m a lawyer, not a computer technician,” he said.

When asked if there were plans to include auditors in the body worn camera program, detective Drew Fowler said, “That is still being assessed.”

And there is currently no oversight process in place to ensure audits are sufficient; a fact that appeared to make some councilmembers nervous, even after Boerner confirmed Wednesday that he himself chooses files for auditing and that he selects them randomly.

“Your reports are very optimistic,” said council member Kshama Sawant, “but that doesn’t concur with reports from the protestors.”

Because the current body camera program is only a pilot, there is still time to reconcile the program with the 1979 ordinance. However, what seems, in some ways, more likely at this point is an effort to update the original intelligence ordinance to maintain its relevance in a more technologically advanced era.

Boerner, one of the architects of the ’79 program, was clear about that. “The ordinance is now 35 years old,” Boerner said. “Data collection technology simple did not exist [back then]. We’re now in a world of digital information. It’s certainly worth…a revisiting.”

“In light of body cameras…,” Harrell said, “many innocent people can be captured in surveillance. All the more reason to examine the ordinance.”

“None of us could have ever conceived of the amount of information that could be gathered,” Boerner said Wednesday, adding, “I don’t think anyone’s doing the old dossier collection anymore.”

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