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This is conference week for me, at the Society of Cinema and Media Studies’ annual conference in Atlanta. Here’s a lightly abridged version of the paper I’m giving. I think it’s fair to say this covers the “media” and “populism” parts of the blog for this week.

“Body-worn cameras and the new defensive panopticism”

by Daniel Smith-Rowsey

In the wake of the widely publicized deaths of Eric Garner, Michael Brown, Tamir Rice, Freddie Gray, Walter Scott, Samuel Dubose, and Sandra Bland, all apparent victims of police brutality, incompetence, and/or racism, anti-police-brutality activists and prominent police departments have increased calls for mandatory on-officer-cameras, sometimes known as body-worn cameras. This remarkable unanimity of nominally opposed forces complexly interacts with Americans’ re-dedication to protecting their privacy and Fourth Amendment rights, best evidenced by the U.S. Congress’ June 2015 re-institution of pre-9/11 limits on governmental data collection. Brian Winston writes that “the legal tradition casts the documentarist as witness to the original scene…science casts the documentary film audience as jurors of the film as evidence,” but in this paper I would like to take Winston one step further, and argue that on-officer-camera-shot documentary footage serves something of a suturing function between oppositional visions of reform, and even of types of evidence: such footage asserts what Michael Renov calls a “truth claim,” yet it appears to endanger privacy rights far less than other forms of data collection. Both claims require greater scrutiny.

Many police departments have been using dashboard cameras for more than a decade, and the National Association of Police Organizations (NAPO) has long favored more dissemination and use of cameras by officers. What is relatively new is the enthusiastic championing, by the likes of #blacklivesmatter and the American Civil Liberties Union, of mass, systematic documentary video-recordings, including their metadata-rich possibilities. I label this defensive panopticism: purportedly inimical police and activists both support comprehensive camera monitoring as defense against assertions of misplaced violence. I mean “panoptic” in the sense pioneered by Michel Foucault (and rehabilitated by Bart Simon after decades of academic critiques): “to induce [a] state of conscious and permanent visibility that assures the automatic functioning of power…the constant pressure acts even before the offences, mistakes, or crimes have been committed.” Herein I examine leading governmental reports on body-worn cameras, interview the officer in charge of on-officer camera policies for Washington, D.C., contextualize emergent policies in the context of renewed panopticism, and question if body-worn-camera documentary footage is as authoritative and unintrusive as it is often reported to be.

To begin with, Ben Brucato writes that in post-Enlightenment, modern-surveillance societies like ours, “transparency is compelled by normative values and the social pact, according to which officials must self-disclose their activities and procedures to the governed. This enables or even assures accountability, and in the case of officials and institutions, reproduces the legitimacy of their authority. In the new transparency, the production of images and video is said to render transparent the behaviors of those documented.” This would be more reassuring were it not for the previous work of those like Bill Nichols and Brian Winston, who have shown that documentaries are not some kind of pure unalloyed fact, but instead subjective testimonials that tend to reify power arrangements. Regarding footage of police arresting criminals, Nichols wrote: “Violent retaliation, often aimed at the very objects we have been urged to joyfully consume, becomes an active form of speech, symbolic action that, instead of talking back to television, takes back the historical world…The thin blue line, and its Echo, that thin blue glow cast across the land, waver between the voices of repression and charity. You must do something for ‘those people’: ‘We know’ and ‘you know’ that this must not happen again. ‘We’ must ensure the social order, forcefully, or increase the downward trickle so that ‘they’ may regain the hope ‘we’ have taken from them, or in an equivocation you will understand, both.” (italics his)

Four decades ago, Michel Foucault published Discipline and Punish, in which he recapitulated Jeremy Bentham’s concept of the panopticon and its major effects: “to induce in the inmate a state of conscious and permanent visibility that assures the automatic functioning of power. So to arrange things that the surveillance is permanent in its effects…in short, that the inmates should be caught up in a power situation of which they are themselves the bearers.” Foucault’s pedagogy was debated, deconstructed, and then, in the 21st century, recovered in light of new technologies and new social practices, leading to what Kailey Giordano calls the “fetishization of the panopticon.” In 1998 Steve Mann coined the term “sousveillance” to refer to “watchful vigilance from beneath,” and this practice is now hallowed in journals like “Surveillance and Society” because sousveillance is thought to disrupt states or state entities with monopolies on surveillance power.

While Foucault’s original work suggested a Big Brother-like state concerned with maximizing its power while minimizing its effort, and more recent work has suggested that people enjoy sousveillance and counter-veillance on their own merits, I wish to suggest something here that I have not seen elsewhere: the normalization of what I call defensive panopticism. Giordano’s claims of “fetishization” suggest a sort of Freudian attraction to surveillance technologies, and while I don’t contest this idea, I believe that the unusual, multi-partisan support for on-officer cameras is less because of fetishization and more because of mortal fear – citizens’ fear of death or injury, police fear of job loss or even incarceration. In many ways, the notion of protective sousveillance was promised by George Holliday’s famous video of Rodney King being beaten on March 3, 1991, encapsulated by Ice Cube’s song, written later in 1991, “Who Got the Camera?” Yesil explains that the video “served as one of the first and most widely-viewed examples of the power of mobile recorded image. The message of the Rodney King tape was that no person, institution or organization was immune from being monitored.”

Holliday’s video, and others that we now recognize as its epistemological descendants, offer a sort of Hobson’s choice for police departments with officers seen in this manner: either the officers are severely disciplined, or the filmed activity is explained as routine police practice (as the Christopher Commission determined in the case of Holliday’s video). As Skolnick and Fyfe wrote, “in the absence of videotapes or other objective recording of gratuitous violence, brutality rarely causes public controversy and is extremely difficult to prove.” Yet even “proof” is not as immutable as the word implies. Surveillance and sousveillance video can confirm pre-existing biases, even diametrically opposed biases. Where some see police providing security and safety, others, particularly those in historically disadvantaged communities, see officers terrorizing poor and people of color. On-officer cameras may well confirm these biases and further defensive tendencies.

Yesil, writing in 2011, before #blacklivesmatter but after the videos of BART passenger Oscar Grant’s slaying went viral, said: “Camera phones…play a significant role in…documenting the misconduct of others, and functioning as tools of surveillance. They reorganize visual documentation and the construction of truth and reality, especially through the emphasis placed on users…these devices have begun to occupy a central position within the matrix of visual documentation and the construction of truth and reality.” The new defensive panopticism presumes that “truth and reality” is indisputable and that power is reified and affirmed by the videotaped image. It presumes that third parties, including juries, will witness videotaped events, whether from surveillance, sousveillance, or otherwise, and blame or exonerate the “right” person. The new defensive panopticism, in other words, is hopeful that any given documentary footage can only be read one way, even though Winston and others have shown that video often serves as more of a Rorschach Test where people see what they wish to see.

The overwhelming majority of police officers that “work a beat” – by driving a patrol car or otherwise physically patrolling a neighborhood – are under the age of 45. Seniority counts in most and probably all police departments, and more senior officers typically apply for, and receive, the type of desk-bound duty that does not require moving around a city on 12-hour shifts. I mention this because most of today’s officers probably saw at least some of the TV show Cops before they even became officers, and this may well have conditioned their behavior.

Aaron Doyle notes that the reification of what he calls “authoritarian pleasures” is intertwined, on the TV program Cops, with what he calls a “voyeurism” that “overrules the wishes of others that the object of viewing remain secreted.” Doyle continues, “The seductions or pleasures of one type of power – voyeuristically intruding into the private or forbidden – are meshed with the seductions of another type of power – identifying with the sanctioned authority of the police.” I believe we see this come into play with the rise of on-officer cameras – “meshed with the seductions” of a third type of power, which is something like a #blacklivesmatter protest, the power that comes from sensing and even harnessing popular outrage over ostensibly obvious police brutality. However defensive their origins, these powers interact with each other in complex, open-ended ways, and may yet strengthen some panoptic aspects of police departments even as they diminish others.

Pamela Donovan wrote in the 1990s, “American law-enforcement officials…expressed dismay at the spread of the true-crime genre, fearing that their officers will engage in hot-dogging, or showing risk-taking, for a shot at fame. In an increasingly privatized world, public servants need public relations.” The two decades since have complicated this notion: on the one hand, certainly America has become more privatized and each person is her own brand, but on the other hand, police have well learned the pitfalls of having their address published online, as exemplified by the case of Darren Wilson, the police officer who shot Michael Brown. Perhaps this observation of Donovan’s retains more salience: “the perceived need to ‘pitch’ law enforcement,” with “a form of address close[r] to advertising.” When police officers are routinely transformed into televisual content, it stands to reason that officers will behave as though they are, almost like auditioning actors, “pitching” their own work, with yet-to-be-determined consequences. It’s also true that if body-worn-camera surveillance is in some ways meant to pre-empt or counter citizen-generated sousveillance, there’s a new incentive for police to move toward a quick resolution, rather than allow a counter-narrative to take shape. One wonders how this will affect routine police business that ten years ago might have been resolved at a more relaxed, less defensive pace.

Gray Cavender writes that shows like Cops, America’s Most Wanted, and Unsolved Mysteries fall into and in fact revitalize the crime genre, a genre that “affirms dominant interests and attitudes even as it offers the vicarious pleasure of suspense and freedom from bureaucratic rules.” With reference to Frank Krutnik’s work, Cavender writes that even in film noir, the iconoclastic, anti-convention outsider hero “nevertheless restores the social order.” Cavender’s point is that the genre “obscures its penchant for order and control behind a style so realistic that its ideology seems natural and appropriate,” and this ideology finds new reification in rise in reality-TV-style police shows in the 90s. I argue that this inherent support of a law-and-order paradigm was appropriated by widespread dashboard cameras in the 2000s, and now by on-officer cameras in our current decade. The National Association of Police Organizations and #blacklivesmatter both seek to use video footage to restore order. This commonality obscures the extent to which “order” is differently defined by each group. Too often, police define order as absolute maintenance of the status quo; #blacklivesmatter works toward an order that would include justice against reckless police officers.

Where two oppositional groups rely upon defensive panopticism, each defends, as though against existential threat, their own idea/notion of the panopticon. For NAPO, this is often the national security apparatus as defined by the post-9/11 Patriot Act; for BLM, this is often a sort of internet-based panopticon of public opinion, where youtube hits and retweets serve as evidence that a police officer has overstepped. Both approaches have problems. One potent issue is that oppositional cultures may have different ideas of what constitutes “privacy.” During recent public statements about the need for body-worn cameras, both police organizations and police-reform movements have stressed the requirement to respect privacy, but it’s possible, perhaps even likely, that they do not mean the same thing when they say it, particularly in an environment where many citizens, and many of my undergraduates, respond to Edward Snowden’s allegations of official impropriety by asking “what have you got to hide?,”

A phrase that often arises is “reasonable expectation of privacy.” Some of the areas where reasonable expectations may differ are: erotic and auto-erotic activity, sexual assault, domestic violence, footage of and/or by stalkers, bathroom functions, nudity, child nudity, children’s faces, pets, financial records, hiring/firing criteria, salary information, privileged conversations with attorneys, doctors, and clergy, medical information, narcotic history, internet browser history, questionable misdemeanors (e.g. littering, jaywalking, traffic tickets), undisclosed hiding places, voting, family secrets, government secrets, and official witness protection. It’s not entirely clear that all of the advocates of body-worn cameras – whether police or private citizens – have established clear unimpeachable guidelines for these areas beyond “reasonable expectations.”

I conducted an interview with the Privacy Officer of Washington D.C.’s Metropolitan Police Department, Liz Lyons, who is administering D.C.’s body-worn camera program as a conscious attempt to provide a model to the rest of the nation. I asked Lyons about officer discretion regarding turning on and off body-worn cameras; she said this is the question she receives most often. “Basically the officer has the camera on during all official police incidents. So if an officer receives a call from dispatch then they turn the camera on…If an officer is casually chatting with someone they do not need to turn the camera on but if the situation is an official incident in that the officer was called to a scene then they should have the camera on…If a citizen requests the camera be off, the officer requests that a supervisor come and consider the circumstances. In general MPD favors keeping the camera on.” This seems in line with both police and activist visions of panopticism. The details are where the visions may separate to some degree.

I asked Lyons if a civilian could request that “identifying details” be obscured or pixilated, e.g. a face or a social security number? Lyons responded, “No, but DC has a strict Freedom of Information Act (FOIA) law that requires redaction of anything that would violate a person’s privacy. If a third party requests a recording…the things listed above will be redacted before the video is released. In fact we would redact…anything that identifies anyone.” I asked Lyons if civilian can request deletions, and if the civilian is a suspect, does that affect the request? Lyons replied: “No and no. MPD considers these recordings to be law enforcement records and as such the records are stored according to law enforcement needs. No one is able to delete the recordings. We follow a strict retention guide and the storage system automatically deletes videos” in exactly 90 days, excepting footage under court or litigant order. I inquired if litigants had access to unedited footage in court cases, and Lyons replied, “Yes, a citizen can request footage for their court case and by request i mean a subpoena or discovery through their litigation. The courts have their own redaction/privacy guidelines to follow. I don’t know about them. We don’t redact videos for litigation. We provide all the evidence which includes videos from BWCs.” This is reasonable as far as it goes, but still leaves room for varying cultural interpretations of privacy, particularly considering how police departments have been run since the 2001 passage of the Patriot Act.

I asked Lyons what steps the District of Columbia may be taking to make sure that something like Chicago’s Laquan McDonald case does not happen – that incriminating/exculpatory footage is suppressed from the family for a year? Lyons replied, “I don’t really know what happened in Chicago but MPD will release footage according to our policy and through subpoenas and FOIA requests. Additionally, the mayor can choose to release video if she sees the need.” I also wondered if D.C. would use archived on-officer camera footage to compile statistics on suspects by race, gender, age, or any other U.S. census-like metric? (I gave Lyons the example that previous studies of episodes of “Cops” included how many suspects were apparently white and apparently persons of color.) Lyons answered, “No and most video is only kept for 90 days so this isn’t really possible.”

I asked Lyons if archived on-officer footage be used to bring additional charges against a suspect? (For example, Perp X is arrested for murder. Can D.C. use month-old footage of Perp X shoplifting to increase the charges against him?) Lyons answered, “This isn’t being done right now but since the recordings are law enforcement records I would think that this could be possible. It is probably already being done by detectives with photos or CCTV footage. It would be difficult with BWC because we would have to know the exact location, date and time that an individual was somewhere. MPD doesn’t regularly review the video unless there is a need and again it gets deleted after 90 days.” I asked: can BWC footage be used to track movements of people related to a suspect who are not themselves actually suspected of a crime/infraction? She answered: “No. MPD does not monitor individuals without reasonable suspicion. I also don’t know how that would even happen with BWCs. The officers are busy working and are not watching videos unless they need to review them for their reports. A typical officer creates hours of footage each shift – we are already storing 1TB of data for example. Also not sure how we would know what video to watch to track the person. You would have to know that the individual was at a location and time when officers were called there. When the officers are called somewhere, an individual’s expectation of privacy is decreased because interactions with police are considered public, i.e., the records are public records and what the officer’s actions are, are for public consideration. Officers only film people who are involved in a police incident. They are not walking down the street filming people.” We return to human semantics and their effects on videotape records. One person’s “reasonable suspicion” may well be another person’s “just hanging out.”

To return to Ben Brucato: “One would reasonably presume that the new visibility of police violence would be a cause for crisis for the institution. But, the proliferation of videos, documenting hundreds of past incidents (and new ones every week) on sites like YouTube and LiveLeak are evidence that video provides little deterrent effect. Even though crime rates are in decline and fewer officers are injured now than in the entire history of the US policing institution, use-of-force and deadly force incidence seems to remain stable.” To explain this, Brucato credits the 1989 Supreme Court case Graham v. Connor, which established the legal principle of “objective reasonableness,” whereby an officer’s use of force must be objectively reasonable from the standpoint of the officer. This principle, reliably touted by judges, police attorneys, and the Taser International Corporation, goes a long way toward explaining and indeed fortifying defensive panopticism, at least from the police perspective. “Probable cause” becomes both a juridical explanation and a rhetorical device that grants officers authority to use subjective impressions of civilians to classify them as “suspects,” thereby excusing profiling. After that, disobeying or resisting an officer is criminalized, permitting an officer to escalate violence within the same standards established by Graham v. Connor. Officer discretion retains the full force of sovereignty.

Most, perhaps all, departments in the process of mandating body cameras have determined that officers may review footage before writing reports. Rather than filing incident or arrest reports with information that is contradicted by video evidence, officers can now produce narrative accounts that can comfortably contextualize the contents of a video within the language of departmental policy. As well, the technology should reduce conflicting accounts, which was a common cause for investigation of officers and exoneration of illegitimately implicated civilians. Thus, we should not be surprised at future statistics that show more exculpations of officers and fewer exonerations of civilians, at least when compared with statistics from before the widespread adoption of body-worn cameras.

In summary, the new defensive panopticism is really the overlap of two panopticisms, one that trusts government, often shorthanded to “surveillance,” and one from anti-brutality activists, often shorthanded to “sousveillance.” These conflicting, complementary webs of footage will not always lead to the same conclusions in each community. #blacklivesmatter and ACLU activists, in a manner unthinkable ten years ago, have encouraged a certain panopticism with the hope that the videotaped truth will help set free the wrongly brutalized and wrongly accused. However, truth may yet prove a more elastic concept. Activists who have encouraged BWC mandates should re-examine why police departments have been so quick to agree with them. BWCs privilege the police perspective and the official, officer-described version of events, as well as potentially transgress against privacy – except, of course, government-mandated privacy, such as federal secrets or witness protection. Though police departments, including Washington D.C.’s, have established fairly transparent, verifiable standards for respecting of privacy, we should still be concerned about the different ways of seeing “reasonable” expectations. We now enter into a brave new world of everyone watching, and we all bear responsibility for watching the watchers.

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Brucato, Ben. “Policing Made Visible: Mobile Technologies and the Importance of Point of View,” in Surveillance & Society, Vol. 13, No 3/4 (2015). http://library.queensu.ca/ojs/index.php/surveillance-and-society/article/view/point-of-view/pointofview

Cavender, Gray. “In ‘The Shadow of Shadows’: Television Reality Crime Programming.” Entertaining Crime: Television Reality Programs. Eds: Fishman, Mark and Gray Cavendar. New York: Walter de Gruyter, Inc, 1998, pp. 79-94.

Donovan, Pamela. “Armed With the Power of Television: Reality Crime Programming and the Reconstruction of Law and Order in the United States.” Entertaining Crime: Television Reality Programs. Eds: Fishman, Mark and Gray Cavendar. New York: Walter de Gruyter, Inc, 1998, pp. 117-140.

Doyle, Aaron. “‘Cops’: Television Policing as Policing Reality.” Entertaining Crime: Television Reality Programs. Eds: Fishman, Mark and Gray Cavendar. New York: Walter de Gruyter, Inc, 1998, pp. 95-116.

Foucault, Michel. Discipline and Punish: The Birth of the Prison. New York: Vintage Books, 1995.

Giordano, Kailey. “The Fetishization of the Panopticon.” http://aleph.humanities.ucla.edu/2015/07/26/the-fetishization-of-the-panopticon/

Miller, Lindsay, Jessica Toliver, and Police Executive Research Forum. Implementing a Body-Worn Camera Program: Recommendations and Lessons Learned. Washington, DC: Office of Community Oriented Policing Services, 2014. http://www.justice.gov/iso/opa/resources/472014912134715246869.pdf Accessed July 30, 2015.

Nichols, Bill. Blurred Boundaries: Questions of Meaning in Contemporary Culture. Bloomington: Indiana University Press, 1994.

Van Dijck, Jose. “Datafication, dataism, and dataveillance: Big Data between scientific paradigm and ideology.” Surveillance & Society Vol. 12, No. 2 (2014): 197-208. http://library.queensu.ca/ojs/index.php/surveillance-and-society/article/view/datafication Accessed July 30, 2015.

White, Michael D. Police Officer Body-Worn Cameras: Assessing the Evidence. Washington, DC: Office of Community Oriented Policing Services, 2014. https://www.ojpdiagnosticcenter.org/sites/default/files/spotlight/download/Police%20Officer%20Body-Worn%20Cameras.pdf Accessed July 30, 2015.

Daniel Smith-Rowsey, Ph.D., is an Instructor of Film at Sacramento State University. His book Blockbuster Performances will be published by Palgrave MacMillan in 2017. He is co-editor of The Netflix Effect: Technology and Entertainment in the 21st Century, to be published by Bloomsbury Books in 2016. His book Star Actors in the Hollywood Renaissance was published in 2013 by Palgrave MacMillan and nominated for a Best Debut Book Award by the Society of Cinema and Media Studies. He has published articles in various journals and presented at several SCMS Conferences.

http://www.nytimes.com/2015/07/31/us/through-lens-of-video-a-transformed-view-of-police.html?hp&action=click&pgtype=Homepage&module=first-column-region&region=top-news&WT.nav=top-news&_r=0

http://www.huffingtonpost.com/entry/police-body-camera-policy_5605a721e4b0dd8503079683

http://www.nytimes.com/2015/10/30/opinion/where-are-black-children-safe.html?&moduleDetail=section-news-4&action=click&contentCollection=Opinion&region=Footer&module=MoreInSection&version=WhatsNext&contentID=WhatsNext&pgtype=article

http://www.theatlantic.com/national/archive/2015/11/jeremy-mardis-police-shooting/414789/

http://www.theatlantic.com/technology/archive/2015/08/police-worn-body-camera-footage-video-washington-dc-new-policy/401468/

http://www.theatlantic.com/technology/archive/2015/11/who-can-see-video-of-a-killing/417684/

http://www.theatlantic.com/technology/archive/2014/12/seen-it-all-before-10-predictions-about-police-body-cameras/383456/

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