While there are many considerations for police departments interested in using body-worn cameras in the field, including policy issues and deployment procedures, there are some legal — and somewhat controversial — hurdles that must be contemplated, too.

In a recent Daily Journal article (subscription required), I explored legal concerns surrounding law enforcement use of BWCs. So far, there has not been any legal challenges raised to BWCs either under the Fourth Amendment or common law privacy law:

Recording in the Field

California requires the consent of two parties for any recording of any confidential communication, either in person or electronically. Under sections 631 and 632 of the state’s Penal Code, there are criminal felony penalties in place for violating the state’s prohibitions on unauthorized wiretapping and eavesdropping and recording.

However, the prohibitions of section 632 do not apply to recording by police officer BWCs. First, section 632 is limited to the recording of “confidential communication,” which is defined as: “Any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto, but excludes … any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.”

This exception, courts have held, is based upon the objectively reasonable expectation that a conversation is not being overhead or recorded. The identity of the parties and circumstances such as topic and locale are also considered. Therefore, it is highly unlikely that the conversation between an officer and a citizen during the officer’s official duties would be found to be a “confidential communication.”

Further, there is case law that says section 632’s prohibition against recording applies only to “communication” — i.e. the words spoken, not the visual image. Therefore, there are no laws that prohibit video recording in a public place or any place an officer has right to be.

Second, section 632 also contains a so-called “law enforcement” exception, allowing any law enforcement officer the right to lawfully record even a “confidential communication,” as long as they are acting with the scope of his or her authority.

Recording in “Private Places”

Courts have also found that, if a police officer is lawfully in a home or other private place in the course of his or her official duties, then recording is not a violation of the Fourth Amendment’s prohibition against unreasonable search and seizure.