Who owns the official recording of your interaction with the police?

On 28 July 2015, the Los Angeles Times notified its readers that it had fired editorial cartoonist Ted Rall, as a result of a tape produced by the Los Angeles Police Department (LAPD) appearing to contradict Rall’s own account of a jay-walking incident that occurred 14 years earlier, and did not result in any arrest or prosecution.  As people concerned with technology policy / life, we can ignore the (admittedly interesting) personalities involved or any disputed aspects of the case and still have some very interesting questions to ask:
  • What percentage of interactions with the police are currently recorded, and have been historically?
  • How well indexed are they?  Given that there is no public record of even the number of police shootings, the fact that a 14-year-old jay-walking incident can be found in an archive would seem pretty interesting.
  • Who has the right to access these recordings?  On the one hand, this could be an invaluable record for activists, social scientists, and government regulators interested in questions of police conduct.  On the other hand, such recordings seem like an important domain for the disputable "right" to be forgotten.
I teach computer science in the UK, where I am legally obliged to remind undergraduates of the UK’s Data Protection Act, a 1998 act of parliament that brought the UK into compliance with its treaty obligations to the EU, specifically with the EU’s data protection directive of 1995. What we are obliged to hammer into our undergraduates seems relevant here, that
“Personal data processed for any purpose or purposes shall not be kept for longer than is necessary for that purpose or those purposes.”
Fourteen years seems a lot longer than necessary for a jay-walking non arrest.  But maybe more importantly given topical concerns such as #BlackLivesMatter, the data protection act also says that individuals have rights to any data held about them.  Of particular relevance here (and I quote, without prejudice, Wikipedia):
The Data Protection Act creates rights for those who have their data stored, and responsibilities for those who store, process or transmit such data. The person who has their data processed has the right to:[5]
  • View the data an organisation holds on them. A ‘subject access request’ can be obtained for a nominal fee. As of January 2014, the maximum fee is £2 for requests to credit reference agencies, £50 for health and educational request, and £10 per individual otherwise,[6]
  • Require that data is not used in any way that may potentially cause damage or distress.[8]
We have some similar rights in the USA, but some of them vary by state and municipality.  Federally held information is covered by the Federal Privacy Act, but of course police are not a part of the federal government.  Also, that act only guarantees access to information held about yourself, and the right to correct errors, but not the right to destroy it.  Notice though that the recording of an interaction between two or more citizens (in this case, one a police officer, one not), would in this case belong to both of them, so negotiating destruction even if it were an option would not necessarily be easy.   A lawyer from Wisconsin I contacted told me that Wisconsin does allow you to request that data held on you be destroyed.  In fact, the Wisconsin State Archivist had told him that he (the lawyer) was the only individual who had exercised that right in the archivist’s memory, but that portions of the Wisconsin government exercised their own such right regularly.

If our states and communities did give us the same rights that European citizens had, then any of us who have been recorded by police (and there’s likely to be many more of us in this situation soon) would have rights that both dictate that:
  1. we should have access to those recordings, and perhaps
  2. that the police should be destroying a great many out-of-date ones.
Obviously, these two rights would conflict.  Also, the destruction of data of course would mean it would not be accessible for study by social scientists, regulators or investigators looking to understand (for example) how and when laws have been applied, or how enforcement changes over time.  Notice also that it is quite possible for police in one municipality to have data about residents of another, so this is not a situation that can just be handled easily at a local level.  Europe handled this problem by creating an international directive that guided national laws, but the legal situation is different in our federation of states.

Ted Rall is claiming that the tapes released of his interaction were also tampered with.  Whether or not that was true in this particular case, the potential for data manipulation by authorities underscores the urgency of having sensible policies, procedures, and legislated rights concerning access to data retained by police and other government agencies.

On or around 14 August 2015 I tried to publish this blogpost through the CITP blog, Freedom to Tinker, but the gatekeeper there didn't think I was sufficiently expert to post on this kind of topic.  So I've been chasing lawyers etc. to get the blog post out, off and on for months.  The above text reflects another of the CITP fellows' input, but while he signed off on me posting his revisions, he still never signed off on being named.  Meanwhile, the topics of data ownership, police records, and police-community relations are getting more salient by the day.  I have decided to give up on worrying about prestige blog gatekeepers and just go back to posting my informed-if-not-expert opinions on my own blog.  Part of what science is about is not being afraid of being wrong, but rather putting your best effort forward where your peers can critique it.  This is how progress gets made, as a collective effort.

If you can't guess, what prompted me to get this out today was Ian Murdock.

Happy New Year; may we all build a better world in 2016.