Boise Police Department officers working the evening shift June 8 were the first members of Boise city law enforcement to wear body cameras. Putting cameras on officers has been in the works for years. When BPD announced the rollout of the first 30 body cams, department officials hailed it as the dawn of a new era for police accountability, transparency and evidence gathering.
"Body cameras provide a tool which not only documents the great work officers do each day but improves our training, makes criminal prosecution more efficient and builds trust in the community by providing even greater transparency," wrote Boise Police Chief Bill Bones in a statement.
There's just one thing missing: a published policy for using the new body cams.
According to BPD spokeswoman Haley Williams, officers wearing the cameras will instead work under a "special order" policy that will resemble the one already in place for police audio recording. The special order will be published with the new policy manual Friday, July 1.
As for the footage captured before then: "Video collected before then will be uploaded and stored pursuant to policy and could be used as evidence," Williams wrote in an email.
Special orders authorize policies that have been green-lighted by BPD command staff, including the chief, and that are set to be published in the next edition of the policy manual. According to Deputy Police Chief Scott Mulcahy, the special order policy for body cameras is a way for BPD to have a paper trail for how policies are implemented between printings of the policy manual.
"A special order is just a way for us to track what policy was in place at what time," he said.
BPD has admitted the process of drafting a policy has been arduous. In November 2015, Bones said he delayed the purchase of cameras as stakeholders—including the police department, the Boise city attorney's office and ACLU-Idaho—drafted a set of rules and procedures that provided department transparency while affording maximum latitude to public records requests.
Critically, the policy drafting process has hinged on privacy, with some worrying a policy weak on privacy protections could lead to civil rights violations, revictimization and lawsuits stemming not just from how the body cameras are used in the field, but how footage is treated as evidence and how sensitive information is removed from public records requests.
"Privacy has probably been the most difficult aspect [in crafting a body camera policy]. Public records laws in the state of Idaho didn't anticipate video," said Mulcahy.
For ACLU-Idaho Executive Director Leo Morales, however, not rolling out a publicly available policy along with the body cameras places BPD in a "classic, law school-type" problem in which the legality of evidence produced by police can be called into question. He said its absence could have particular implications on the privacy rights of people caught on camera—precisely those BPD sought to protect in delaying the camera rollout in the first place.
"It's always extremely critical when the government is going to employ activity that could infringe civil rights," he said.
The situation is more complicated than that, however, for Boise criminal defense attorney Kyle O'Neal Schou, of Cox Law PLLC, who said he typically obtains police policy and procedure information through online and published sources, as well as public records requests.
While Schou said the evidence collected via body camera is admissible even without a published policy, "There needs to be a policy somewhere and it needs to be available in some fashion to citizens of the state. [Police] need to be transparent."
During talks with BPD, ACLU-Idaho brought to the table its model body camera policy, which Morales said balances privacy, speech, evidentiary and transparency issues that may arise when law enforcement uses the relatively new technology. That doesn't mean Morales is completely satisfied with the results, as BPD's draft policy allows what he described as "terribly long" periods of video retention for some felonies, possible filming of protesters exercising free speech rights and filming on school grounds.
"That's something that we discourage law enforcement to film," Morales said of body cameras being used in schools.
The rapid pace of improvements in police technology has been a thorn in the side of policy makers, and watchdogs have taken note. Electronic Frontier Foundation Investigative Researcher Dave Maass said the delay in rolling out rules along with the cameras is part of a trend of law enforcement getting ahead of itself, with best practices being considered after officers begin using their body cameras.
"There's this game law enforcement plays with policy makers where they go and get [technology] instead of asking for permission in advance," he said. "Policy doesn't move as fast as innovation."
This is disturbing, he said, because well-crafted policies indicate law enforcement takes body cameras' roles in transparency, evidence collection and civil rights seriously—and the pitfalls of the new technology are numerous. Maass recommended cities consult with neutral technologists to identify the hidden ways video evidence could cause harm, and mitigate them through rules and protocols.
"Oftentimes policy makers aren't the most technologically savvy individuals," he said.
Schou said he's completely in favor of body cameras, since they offer higher quality evidence than the audio equipment BPD officers already use—as long as a policy guiding their use is available upon request.
"You've got a good record of what happened [during an enforcement action]," he said. "People's memories are basically crap. It's nice to have video to show you exactly what happened."
By the end of 2016, every uniformed officer in the BPD will wear a body cam—250 cameras in all—and, according to Williams, the department will continue to refine policies regarding their use for at least six months after its official rules are written into the Policy and Procedure Manual. Through that process and beyond, it will have a willing partner in the ACLU.
"We'll continue to work with [BPD] to ensure they have a good policy," Morales said.Editor's Note: This story has been updated, amended and expanded throughout to clarify that while the Boise Police Department has not yet published its body camera policy, it is operating with a policy authorized by special order from BPD command staff.