Category Archives: Privacy

Body Camera Laws Raise Questions about Access to Footage

Source: Nathan Smith, Council of State Governments, The Current State, #72, August 8, 2016

In the wake of several high-profile incidents involving the injury or death of citizens during altercations with law enforcement, questions surrounding police misconduct and use of force have grown in recent years. Increasingly, policymakers and the American public alike are looking to and calling for the use of body cameras by law enforcement officers in an effort to increase transparency in police-civilian interactions. A 2015 University of Nevada, Las Vegas survey revealed that 85 percent of those in a national sample of U.S. adult residents supported a requirement for police officers to wear body cameras while on patrol to record their interactions. While support for such a requirement is strong and more police departments are expected to adopt body cameras, one question is fiercely divisive: Who should have access to footage recorded on police body cameras?

Illinois AG Rules That Public Employees’ Personal Emails Are Public Records – Messages Pertaining to Public Business in Personal Email Accounts Subject to Disclosure Under FOIA

Source: Mark E. Burkland, Benjamin Schuster, JD Supra, August 16, 2016

HIGHLIGHTS:
• The Illinois Attorney General (AG) issued a binding opinion under the state’s Freedom of Information Act (FOIA) that email messages sent or received through public employees’ personal email accounts may be public records subject to disclosure under FOIA if the messages pertain to public business.
• The opinion was issued as a result of CNN’s FOIA request seeking all email messages from Chicago Police Department email accounts and personal email accounts related to Laquan McDonald, who was fatally shot by a police officer in October 2014.
• In light of the AG’s opinion, public bodies should expect to receive FOIA requests that specifically request email and text messages sent or received through personal email accounts and on personal devices. Accordingly, each public body should establish clear guidelines requiring employees to turn over, if requested by the public body, personal email and text messages that pertain to public business….

Body Cameras and Police

Source: Police Quarterly, Vol. 19 no. 3, September 2016
(subscription required)

Public Perceptions of the Justifiability of Police Shootings: The Role of Body Cameras in a Pre- and Post-Ferguson Experiment
Scott E. Culhane, John H. Boman IV, and Kimberly Schweitzer, Police Quarterly, Vol. 19 no. 3, September 2016
(subscription required)

From the abstract:
We conducted two studies, wherein participants from across the United States watched, heard, or read the transcript of an actual police shooting event. The data for Study 1 were collected prior to media coverage of a widely publicized police shooting in Ferguson, Missouri. Results indicated that participants who could hear or see the event were significantly more likely to perceive the shooting was justified than they were when they read a transcript of the encounter. Shortly after the events in Ferguson, Missouri, we replicated the first study, finding quite different results. Although dissatisfaction with the shooting was seen in all forms of presentation, video evidence produced the highest citizen perceptions of an unjustified shooting and audio evidence produced the least. Citizens were nonetheless overwhelmingly favorable to requiring police to use body cameras. Body-mounted cameras with high-quality audio capabilities are recommended for police departments to consider.

Officer Perceptions of Body-Worn Cameras Before and After Deployment: A Study of Three Departments
Source: Janne E. Gaub, David E. Choate, Natalie Todak, Charles M. Katz, and Michael D. White, Police Quarterly, Vol. 19 no. 3, September 2016
(subscription required)

From the abstract:
Over the past few years, several events have highlighted the strained relationship between the police and residents in many communities. Police officer body-worn cameras (BWCs) have been advocated as a tool by which police–community relations can be strengthened, while simultaneously increasing transparency and accountability of police departments. Support for BWCs from the public and federal government is strong, and some studies have examined police perceptions of BWCs. However, comparisons of officer perceptions of BWCs in different departments are lacking, as are assessments of officer attitudes pre- and post-BWC deployment. This study compares officer perceptions of BWCs in three police departments in the western United States between 2013 and 2015, both before and after BWC program implementation. The similarities and differences among officer perceptions across departments are examined, and the authors consider the implications of findings for police departments moving forward with BWC technology.

Assessing the Impact of Police Body-Worn Cameras on Arresting, Prosecuting, and Convicting Suspects of Intimate Partner Violence
Source: Weston J. Morrow, Charles M. Katz, and David E. Choate, Police Quarterly, Vol. 19 no. 3, September 2016
(subscription required)

From the abstract:
The perceived benefits that generally accompany body-worn cameras (BWCs) include the ability to increase transparency and police legitimacy, improve behavior among both police officers and citizens, and reduce citizen complaints and police use of force. Less established in the literature, however, is the value of BWCs to aid in the arrest, prosecution, and conviction of intimate partner violence (IPV) offenders. We attempt to fill that void by examining the effect of pre- and post-camera deployment on a number of outcomes related to arrest, prosecution, and conviction. The findings provide initial evidence for the utility of BWCs in IPV cases. When compared with posttest non-camera cases, posttest camera cases were more likely to result in an arrest, have charges filed, have cases furthered, result in a guilty plea, and result in a guilty verdict at trial. These results have several implications for policing, prosecuting, and convicting IPV cases.

Increasing Cooperation With the Police Using Body Worn Cameras
Source: Barak Ariel, Police Quarterly, Vol. 19 no. 3, September 2016
(subscription required)

From the abstract:
What can change the willingness of people to report crimes? A 6-month study in Denver investigated whether Body Worn Cameras (BWCs) can change crime-reporting behavior, with treatment-officers wearing BWCs patrolling targeted street segments, while control officers patrolled the no-treatment areas without BWCs. Stratified street segments crime densities were used as the units of analysis, in order to measure the effect on the number of emergency calls in target versus control street segments. Repeated measures ANOVAs and subgroup analyses suggest that BWCs lead to greater willingness to report crimes to the police in low crime density level residential street segments, but no discernable differences emerge in hotspot street segments. Variations in reporting are interpreted in terms of accountability, legitimacy, or perceived utility caused by the use of BWCs. Situational characteristics of the street segments explain why low-level street segments are affected by BWCs, while in hotspots no effect was detected.

Research on Body Worn Cameras: Meeting the Challenges of Police Operations, Program Implementation, and Randomized Controlled Trial Designs
William H. Sousa, James R. Coldren, Jr., Denise Rodriguez, and Anthony A. Braga, Police Quarterly, Vol. 19 no. 3, September 2016
(subscription required)

From the abstract:
As police departments across the United States equip officers with body worn cameras (BWCs), research has focused on the technology’s impact on police interactions with citizens, officer misconduct, officer use of force, and false allegations against police. Given the large number of police agencies implementing BWCs across the country (numbering in the thousands), there will be a growing number of opportunities for BWC evaluations and expectations that these programs will be evaluated. Studying the implementation of BWCs presents a number of challenges to both researchers and police agencies, particularly when large police organizations are involved. Drawing on our experiences involving a BWC experiment with the Las Vegas Metropolitan Police Department, this article discusses the programmatic challenges of implementing a BWC program in a large agency (technical, political, and administrative) while simultaneously evaluating the program using a randomized controlled trial design.

Police Body Worn Cameras: A Policy Scorecard

Source: Leadership Conference on Civil and Human Rights, August 2016

From the press release:
Today The Leadership Conference on Civil and Human Rights and Upturn released a scorecard that evaluates the civil rights safeguards of police body-worn camera programs in 50 U.S. cities. It shows a nationwide failure to protect the civil rights and privacy of surveilled communities. In November 2015, these organizations released an initial scorecard evaluating 25 programs. This new edition updates the policies of those original police departments that have changed their policies and adds 25 more, including the nation’s largest police departments with body-worn camera programs, programs that have received significant funding from the Department of Justice, and programs in cities that have been under scrutiny due to high profile incidents of police violence.

Departments in this edition of the scorecard include: Albuquerque, Aurora (Colo.), Austin, Baltimore, Baltimore County, Baton Rouge, Boston, Charlotte-Mecklenburg, Chicago, Cincinnati, Cleveland, Dallas, Denver, Detroit, Fairfax County (Va.), Fayetteville, Ferguson, Fort Worth, Fresno, Houston, Las Vegas, Louisville, Los Angeles, Memphis, Mesa, Miami, Miami-Dade County, Milwaukee, Minneapolis, Montgomery County (Md.), New Orleans, New York, Oakland, Oklahoma City, Omaha, Parker (Colo.), Philadelphia, Phoenix, Pittsburgh (Penn.), Rochester (N.Y.), Salt Lake City, San Antonio, San Diego, San Francisco, San Jose, Seattle, St. Louis, Tampa, Tucson, and Washington, D.C…..

The TPP & Other Free Trade Agreements: Faustian Bargains for Privacy?

Source: Graham Greenleaf, University of New South Wales Faculty of Law, UNSW Law Research Paper No. 2016-08, February 14, 2016

From the abstract:
Free Trade Agreements (FTAs) are not likely to be sources of privacy rights, but may act as limitations on the operation of privacy laws. Countries negotiating new bilateral or multilateral trade agreements, particularly but not exclusively the USA, are likely to attempt to include a requirement that the parties do not include any significant data export restrictions, or ‘data localisation’ provisions in their laws.

I argue that, in most cases, the only role that privacy rights should play in Free Trade Agreements is a negative one: as explicit exceptions confirming that other FTA provisions have nothing to do with limiting the protection of privacy (or other human rights). Human rights are not bananas, to be traded for other commodities.

Until 2016, Article XIV(c)(ii) of the GATS (General Agreement on Trade in Services, 1995) was the only significant privacy limitation in FTAs, but an important one because of its near-universality. Its effect is still uncertain, as it has not yet resulted in WTO case law.

The Trans-Pacific Partnership (TPP) agreement, signed (but not ratified) in February 2016, is the first multilateral trade agreement with detailed provisions relating to privacy/data protection that go beyond GATS, and they are overwhelmingly negative from a privacy perspective. The TPP requirements involve: (a) no substantive or meaningful requirements to protect privacy; (b) coupled with prohibitions on data export limitations or data localisation requirements that can only be overcome by a complex ‘four step test’ of justification; and (c) backed up by the risk of enforcement proceedings between states or under ISDS provisions, both involving uncertain outcomes from dubious tribunals and potentially very large damages claims.

TPP seems to be the type of binding international privacy treaty that the USA (in particular) wishes to achieve. For the other states whose personal data will be ‘hoovered up’, it is more likely to be a Faustian bargain: put at risk the protection of the privacy of your citizens (except at home) in return for the golden chalice of trade liberalisation. If the TPP is defeated in the US Congress, this will be a net gain for privacy protection, whatever one thinks about the other potential economic advantages of the TPP.

In the meantime, other FTAs are proliferating, and overlapping in confusing ways. This article concludes with a review of what (if anything) is known of possible privacy provisions in agreements under negotiation including the EU-US TTIP, the Trade in Services Agreement (TISA), RCEP, and PACER. One way or another, FTAs are likely to be one of the defining factors in the future evolution of data privacy laws.

Don’t Panic: Making Progress on the ‘Going Dark’ Debate

Source: Harvard University, Berklett Cybersecurity Project of the Berkman Center for Internet & Society, 2016

From the press release:
The Berklett Cybersecurity Project of the Berkman Center for Internet & Society at Harvard University is pleased to announce the publication of a new report entitled “Don’t Panic: Making Progress on the ‘Going Dark’ Debate.” The report examines the high-profile debate around government access to encryption, and offers a new perspective gleaned from the discussion, debate, and analyses of an exceptional and diverse group of security and policy experts from academia, civil society, and the U.S. intelligence community…. The report takes issue with the usual framing of the encryption debate and offers context and insights that widen the scope of the conversation to more accurately reflect the surveillance landscape both now and in the future. … Set within the recent implementation of encryption by various companies and the recent history of the government’s increasing concerns, the report outlines how market forces and commercial interests as well as the increasing prevalence of networked sensors in machines and everyday appliances point to a future with more opportunities for surveillance, not less….

Employee Wellness Programs Not So Voluntary Anymore

Source: Rebecca Greenfield, Bloomberg Businessweek, January 15, 2016

Take a blood test or lose your health coverage….

….Like many employers, Flambeau uses a wellness program to cut insurance costs by encouraging healthy employee habits. In the past, submitting to on-site tests of blood pressure, body-mass, and cholesterol meant saving a few hundred dollars. Now companies such as Flambeau have gone a step farther, denying healthcare entirely to those who don’t participate. People like Arnold must instead pay for more expensive coverage through the government’s COBRA program.

According to several federal courts—including one that ruled in favor of Flambeau—this is all perfectly legal.

In a case filed by the Equal Employment Opportunity Commission, the U.S. government argued that Flambeau’s wellness program didn’t comply with the Americans with Disabilities Act, which limits companies from requiring medical exams or personal health information from workers. Denying employer-sponsored coverage crosses the line from voluntary to coercive, the EEOC contended…..

Employer Wellness Programs and Genetic Information: Frequently Asked Questions

Source: Amanda K. Sarata, Congressional Research Service, CRS Report, R44311, December 17, 2015

….This report explains when an employer may request genetic information from an employee as part of a wellness program with an inducement attached to participation and the requirements the employer must follow when doing so. It also discusses the EEOC’s proposed rule whereby a spouse may be incentivized to provide his or her own medical information, which is also the employee’s genetic information, as part of a wellness program…..

Big and Open Linked Data (BOLD) in government: A challenge to transparency and privacy?

Source: Marijn Janssen, Jeroen van den Hoven, Government Information Quarterly, Volume 32, Issue 4, October 2015
(subscription required)

From the abstract:
• Transparency and privacy should be conceptualized as complex constructs.
• Transparency and information silos are essential for protecting privacy.
• Need for privacy-by-design and transparency-by-design
• Acceptable levels of privacy and transparency need to be balanced taking many factors into account.

Big and Open Linked Data (BOLD) results in new opportunities and have the potential to transform government and its interactions with the public. BOLD provides the opportunity to analyze the behavior of individuals, increase control, and reduce privacy. At the same time BOLD can be used to create an open and transparent government. Transparency and privacy are considered as important societal and democratic values that are needed to inform citizens and let them participate in democratic processes. Practices in these areas are changing with the rise of BOLD. Although intuitively appealing, the concepts of transparency and privacy have many interpretations and are difficult to conceptualize, which makes it often hard to implement them. Transparency and privacy should be conceptualized as complex, non-dichotomous constructs interrelated with other factors. Only by conceptualizing these values in this way, the nature and impact of BOLD on privacy and transparency can be understood, and their levels can be balanced with security, safety, openness and other socially-desirable values.

How Walmart Keeps an Eye on Its Massive Workforce – The retail giant is Always watching.

Source: Susan Berfield, Bloomberg Businessweek, November 24, 2015

In the autumn of 2012, when Walmart first heard about the possibility of a strike on Black Friday, executives mobilized with the efficiency that had built a retail empire. Walmart has a system for almost everything: When there’s an emergency or a big event, it creates a Delta team. The one formed that September included representatives from global security, labor relations, and media relations. For Walmart, the stakes were enormous. The billions in sales typical of a Walmart Black Friday were threatened. The company’s public image, especially in big cities where its power and size were controversial, could be harmed. But more than all that: Any attempt to organize its 1 million hourly workers at its more than 4,000 stores in the U.S. was an existential danger. Operating free of unions was as essential to Walmart’s business as its rock-bottom prices…..

Internally, however, Walmart considered the group enough of a threat that it hired an intelligence-gathering service from Lockheed Martin, contacted the FBI, staffed up its labor hotline, ranked stores by labor activity, and kept eyes on employees (and activists) prominent in the group. During that time, about 100 workers were actively involved in recruiting for OUR Walmart, but employees (or associates, as they’re called at Walmart) across the company were watched; the briefest conversations were reported to the “home office,” as Walmart calls its headquarters in Bentonville, Ark…..

….The details of Walmart’s efforts during the first year it confronted OUR Walmart are described in more than 1,000 pages of e-mails, reports, playbooks, charts, and graphs, as well as testimony from its head of labor relations at the time. The documents were produced in discovery ahead of a National Labor Relations Board hearing into OUR Walmart’s allegations of retaliation against employees who joined protests in June 2013. The testimony was given in January 2015, during the hearing. OUR Walmart, which split from the UFCW in September, provided the documents to Bloomberg Businessweek after the judge concluded the case in mid-October. A decision may come in early 2016….