It has been approximately 16 years since Axon[1] introduced its first Body Worn Camera (“BWC”). At that time, it was designed to be head-mounted much like a GoPro to a snowboarder. Since then, the effect and iterations of this technology are nearly impossible to qualify and quantify. In addition to BWCs, Axon offers its “Fleet” dashcams, which many agencies also use. The dynamic pace of police-related technology warrants ongoing attention. This article is designed to update those who use these devices of the current state of the technology.
In view of our firm’s representation of thousands of police officers across the State, it has been no surprise that we have been getting a lot of questions and concerns about how developing BWC technology is capturing audio and video, how that digital information is accessed, and under what circumstances. We have heard rumors about potential closed-circuit-type, real-time viewing of BWC and/or dashcam footage, and the possibility that all passively recorded data (audio and/or video) is kept in the cloud. In other words, officers, administrators and unions are wondering whether everything they do and say, even when they are not actively recording, is captured and saved. This is important to understand for many reasons.
For one, in California, all of us generally have a right to know when confidential communications are being recorded, and a person who records another without consent may be guilty of a crime[2]. This does not apply to your standard BWC recording for law enforcement purposes, but what about a patrol officer on a lunch break with a close friend and co-worker talking about a personal issue? A lot happens during the course of a shift that should not be open and accessible. Our law firm has negotiated many of the BWC policies across the State and has gone to great lengths to protect the privacy of individual police clients while they are working. Moreover, BWCs may capture highly sensitive information related to things such as confidential informants, the name of a minor victim or tactical protocols. Obviously, policies are in place to guard against these disclosures, but the advances in technology warrant a new review and analysis of the effectiveness of those policies.
While I imagine an anti-police activist or over-zealous public defender reading this would disingenuously suggest that any concern over this expanding technology is a ruse to maintain a blue wall of silence, it is hard to think of any other career (besides reality TV star) where one is forced to live one’s life under constant public and media surveillance like police officers do. Privacy rights of officers as well as the effective mission of policing require both reasonable controls and vigilance concerning the introduction of new technology into policework.
At the very least, those agencies using these cameras should understand the state of the technology in terms of what is recorded, broadcast and saved, and under what circumstances. Of course, the unions representing police officers must also be made aware of the impacts of new BWC technology. We recently spoke with a senior executive from Axon (based out of Scottsdale, AZ), about the full capabilities of their cameras and here is what we learned:
- The most advanced Axon BWC at this time is the Axon Body 4. The features discussed here will be based on that camera, but the key features of the Axon Body 4 are similar to Axon 3.
- The current top-of-the-line Fleet dashcam is the Fleet 3. The dashcam set-up is two cameras that are connected to a hub where that data is stored (BWC data is stored within the camera itself).
- Much of what is being recorded or livestreamed is dependent on your agency’s choice of products and services, as well as the settings selected. For example, a given agency may not have paid for the service (Axon Respond) to livestream. Or, they may have every available and current piece of hardware and every service, but the numerous settings that they choose may not include video recall of passively-recorded events.
- A relatively comprehensive and current set-up would be an Axon 4 BWC with a “POV” camera[3], Axon Respond service, and the Axon 3 Fleet (dashcam).
- Assuming a scenario where all settings are activated and allow for maximum possible recording and livestream capability, here is what happens:
- A powered-up and booted-up BWC or dashcam automatically enters buffering mode. It can passively record audio and video and store that data for up to 18 hours (this feature is called “recall”). The video for this passively recorded data is considered low-resolution. Once the video is downloaded to a server, it can remain accessible for years.
- An agency can “livestream” only an actively recording camera. That livestream can be viewed remotely (on a computer or cell phone, for example), but cannot be recorded. Of course, a person can theoretically use devices other than what Axon provides to record a screen.
- When a livestream is initiated, the officer wearing the camera is notified by a series of indicators. There is a distinctive beep, a purple light is activated, there is a haptic (vibration) and the screen display on top of the camera goes from reading “recording” to “livestream.”
- Officers can also initiate a livestream from their camera using a dedicated button with the feature known as “watch me.”
- Axon also offers the ability to automatically activate cameras (often with additional equipment required) upon certain occurrences. This includes activation of a patrol vehicle’s emergency lights and siren, and the removal of an officer’s gun from its holster, etc.
- It should be noted that, virtually everything that an operator of these devices does is logged. All events are memorialized and reviewable in what is essentially an audit log.
If one thing is clear from all of this, it is that there is a wide range of possibilities when it comes to what is being recorded, stored and streamed depending on the Axon equipment and features your agency uses, as well as the settings selected. Axon offers certification courses for its products that are available online for those that want a better understanding of the features and capabilities. As of this time, users of Axon cameras should be aware that with some models and with certain settings activated (as mentioned above), everything they do while the camera is powered up may be captured and stored for up to 18 hours, and then downloaded and saved. In such cases, the agency should have policies in place confirming the activation of that extreme setting. Further, the union should have met and conferred on that policy.
We suggest that police unions actively monitor and track their agency’s array of technology options on current equipment and whether those options have been, or will be, updated or utilized. Software updates to current equipment can dramatically expand the digital capabilities and create real privacy challenges. We also believe that most law enforcement agencies share a mutual interest in protecting confidential communications and privacy rights of police officers and citizens. Although most police unions will be watchful over these issues, it is not uncommon for some agencies to neglect their legal obligation to notice and/or bargain over changed working conditions. Therefore, please follow our standard admonition that while in the presence of a BWC attached to you or another officer, assume you and everything around you is being recorded.
About the Author
Andrew M. Ganz is a trial attorney in the RLS Legal Defense Practice Group. Andrew defends public sector employees in criminal matters, administrative investigations, critical incident investigations, and disciplinary appeals. He also represents public sector employees in disciplinary actions and related litigation. Andrew can be contacted at: AGanz@RLSlawyers.com
Footnotes
[1] This article focuses on Axon brand BWCs. There are several other brands manufactured and used throughout the state, but Axon is by far the most widely-used.
[2] See Penal Code § 632
[3] This camera is plugged into the BWC and can be mounted to various gear such as a ballcap, glasses or collar. If plugged into the BWC, it is the default camera. When unplugged, the BWC is the recording/streaming camera. Only one camera can record at a time.
