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Date: February 23, 2021

To: Chief P. Nikolai

From: Sergeant G. Deger

Subject: Super Body Worn Camera (SBWC) Policies and Procedures

Purpose

The purpose of this memorandum is to answer two main questions:

 Does the Super Body Worn Camera (SBWC) violate a civilian’s right to privacy

under when law enforcement “secretly” captures facial images, and voice and

DNA data of subjects within 10 feet of officers while the devices are activated.

 If SBWC’s are purchased, should our department’s policy and procedures

manual compel officers to obtain consent from each subject before activating the

SBWC?

Discussion

Technological advancements are allowing law enforcement to enhance their ability to

solve crimes and provide public safety. At the leading edge of these advancements is the

SBWC. We should be proud of our willingness as a department to try new technologies and

seek improvement in the way we conduct business. However, we must remember that public

trust is crucial in the current operating environment. We must strike a balance between “getting

the job done”, and the privacy concerns of citizens.

The biggest issue with the use of the Super Body Worn Cameras is that their use likely

violates a person’s right to privacy when either facial recognition data, voice analysis data, DNA

or a combination thereof is captured “secretly” and stored by law enforcement without the
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citizen’s consent. Make no mistake, recent case law decisions (Riley v California:i, and

Carpenter v United States:ii to name a few) indicate this indiscriminate practice will be

considered a warrantless search.

A key concern is the manner in which the data is captured. Numerous databases exist

that store similar data to that described above.iii ivHowever, whether it be a DMV database of

facial images or a DNA database stored by a genealogy website, a citizen is knowingly “opting-

in” or making a conscious decision to allow storage of their data in order to obtain something (a

driver’s license or historical family information, respectively). The pushback to governmental

intrusion into these types of databases (even with a search warrant) is becoming well-

documented.v Certainly if there is such an issue with databases knowingly opted into, there are

considerable privacy concerns/violations with obtaining and storing the information of anyone

within 10 feet of one of our officers, unbeknownst to the citizenry.

Conclusion

We have seen the constitutional right to privacy grow stronger. Given the concerns

surrounding SBWC use, my recommendation would be to not pursue these devices at this time.

However, if we do move forward with the SBWC program, we will need intense community and

city leadership involvement, as well as a directive in our policy and procedure manual to obtain

consent from the public before the SBWC is activated. The seeking of consent would be a

proactive measure. USD’s Professor Begovich stated, “public policy wants law enforcement to

solve crimes.”vi However, without consent, we run the risk of a repeat of Missouri v McNeely

where a decision applied retroactively resulted in the dismissal of cases where blood draws

were obtained without admonition and consentvii. We would be better served to be forward-

thinking, anticipatory, and erring on the side of caution.

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Respectfully Submitted,

Sergeant Gregory Deger

i
Matthews, K. (2014, August 2). Landmark Supreme Court Ruling Protects Cell Phones from Warrantless Searches. National Law Review.

ii
McCubbin, S. (2018, June 22). Summary: The Supreme Court Rules in Carpenter V United States. Lawfare.
iii
Harwell, D. (2019, July 7). FBI, ICE find state driver’s license photos are a gold mine for facial-recognition searches. The Washington Post.

iv
Wikipedia. (2021, February 18). GEDmatch. Retrieved from https://en.wikipedia.org/wiki/GEDmatch

v
Aldhous, P. (2020, February 3). A Court Tried to Force Ancestry.com To Open Up Its DNA Database To Police. The Company Said No.
Buzzfeed News.

vi
Begovich, M. (2021). LEPS 530 Presentation 7.1: Technology versus Privacy – Making Prudent Managerial Decisions. University of San
Diego LEPSL program.

vii
Levow, E. (2015, August 12). New Jersey Supreme Court Retroactively Applies 2013 U.S. Supreme Court Ruling on Forced Blood Draws
in DWI Cases. Levow DWI Law.