Statement on behalf of the
American Civil Liberties Union of the District of Columbia
DC Council Committee on Judiciary and Public Safety
Public Roundtable on Proposed Resolution 23-357, the “Closed Circuit Television Modernizations Rulemaking Approval Resolution of 2019”
Thursday, September 26, 2019
Nassim Moshiree, Policy Director
Good morning, Councilmember Allen and members of the Committee. My name is Nassim Moshiree and I am the Policy Director of the American Civil Liberties Union of the District of Columbia (ACLU-DC). I present the following testimony on behalf of our 14,000 members in the District.
The ACLU-DC is committed to working to reverse the tide of over-incarceration, safeguard fundamental liberties, eliminate racial disparities, and advocate for sensible, evidence-based reforms of criminal justice policies. Thank you for providing this opportunity for public comment on the Mayor’s proposed rulemaking to amend Chapter 25 of Title 24 of the DC Municipal Regulations, the “Closed Circuit Television Modernization Rulemaking Approval Resolution of 2019” (PR23-357).
The proposed rulemaking modifies several procedures governing the Metropolitan Police Department’s (MPD) use of its network of closed-circuit television (CCTV) cameras about which the ACLU-DC has significant questions and concerns. The two proposed changes we are most concerned about are 1) lowering the standard of supervision for MPD’s monitoring of CCTVs, and 2) increasing the retention period for CCTV footage from 10 days to 90 days.
These are significant changes to rules that were put in place to protect against the potential abuse and misuse of a powerful surveillance tool that has the capability to undermine fundamental rights of privacy, speech, expression, and association.
I. PR23-357, by lowering the standard of supervision of CCTV activities, removes a critical accountability check on MPD’s handling of sensitive information.
First, the proposed rulemaking removes the requirement that an official with the rank of Lieutenant or above be present in MPD’s Command Information Center (CIC) to supervise the monitoring of CCTV videos and allows for a sergeant or civilian equivalent to fill this role. The ACLU-DC is concerned about this change because CCTV footage often captures sensitive information about District residents, and having a high-ranking officer supervise the monitoring of this data serves as signal to both the public and to MPD employees that such sensitive information is controlled and protected against abuse. While we understand that regulations and MPD’s internal policies prohibit an unauthorized use or misuse of the CCTV systems, privacy violations can and do occur even with clear rules and procedure in place. In New York City, for example, an officer monitoring CCTV footage at a public housing unit was discovered to have called other officers so they could watch a feed showing two public housing residents engaged in intercourse. Another officer was found to have shared footage on an internet website of a woman’s suicide caught on CCTV. Lowering the standard for monitoring of CCTVs would both increase the instances of misuse and could prevent MPD leadership of learning about such misuse in the first place.
For these reasons, we disagree with MPD’s argument that it is unnecessary to have a high ranking MPD officer supervise the Departments’ monitoring of CCTVs at all times, and we recommend that the Council ask MPD to demonstrate why such a change is necessary as opposed to just more convenient.
II. PR23-357, by increasing the retention period of CCTV footage, increases risks of potential abuse, breach of data, and unwarranted surveillance of DC communities.
The proposed rulemaking also extends the current CCTV retention period from 10 days to 90 days. Such an extension is significant, and the explanation given by MPD for this change, in our view, is insufficient to justify this change. Our understanding is that the recording of CCTV footage in the District is event driven and not continuous. If MPD officers monitor and record CCTV footage only for specific reasons, such as following a reported incident of crime, why would MPD need to retain CCTV footage for 90 days?
There are very good reasons for limiting data retention – namely to limit potential abuse and possible breach of data. Studies have also linked racially-biased policing with the use of camera systems, and the concerns about discriminatory policing and the disproportionate scrutiny placed on black and brown as well as low-income communities by law enforcement also exists with use of camera systems. Compounding these concerns of possible abuse is that the locations of the cameras themselves may be linked to racially biased policing. Retaining all footage for 90 days also creates additional risks of unwarranted and continuous surveillance of communities. And increasing the retention rate seems not only unnecessary and privacy intrusive but could be rather costly as well.
One reason that MPD gives for increasing the retention period is that doing so “might avoid potential court challenges where footage was captured but not otherwise retained.” But there already exists an exception to the 10-day retention period in the regulations for recordings that contain evidence of criminal activity, those that may subject MPD to civil liability, or for recordings that will be used for training purposes. It is unclear to us why MPD would need to extend the default retention period when current regulations clearly allow the Department to retain CCTV footage for longer periods of time when these conditions exist.
MPD’s notice also states that increasing the retention period for CCTV footage would bring it in line with the minimum retention requirements for body-worn camera (BWC) videos, but BWC and CCTV serve vastly different functions. BWCs record police-civilian interactions and retaining the footage for 90 days serves an important transparency and accountability purpose. Among its many uses, a 90 day retention period for BWCs allows time for civilians to file complaints about specific interactions with officers and for the Office of Police Complaints to effectively review and investigate instances of police misconduct, it allows defense counsel in criminal cases to flag exculpatory footage, it allows lawmakers to request access to footage for oversight purposes, and it allows the public to request access to footage of incidents that are of significant public interest. CCTV footage, on the other hand, records anything that comes into its field of vision and is not necessarily linked to any police or criminal activity that the police may have an interest in preserving. It therefore makes sense that the retention period for CCTV footage is much shorter than that for BWC footage, and that any extensions beyond the 10-day period for CCTVs occur on a case by case basis, for which the existing rules allow.
Finally, the concerns raised above must be viewed through the greater context of the privacy risks inherent in the government’s use of mass surveillance technologies and its implications for community members. Proponents of CCTV and other video surveillance have long contended that cameras enhance public safety by deterring crime as the basis for promoting and expanding their use. But, although images may assist in criminal investigations after the fact, there is a scarcity of evidence that that video surveillance prevents or deters crime. There is, however, a significant body of evidence that the proliferation of surveillance technology infringes upon fundamental rights of privacy, speech, expression and association, and that critical checks and oversight of this technology are therefore necessary to prevent such violations.
This is not new. When CCTVs were first adopted as a surveillance tool by the District, rules were adopted to limit the access to footage and the retention of data specifically as a result of these risks. Since then, CCTVs and the use of other video surveillance systems has grown significantly as a tool used by law enforcement for surveillance of public spaces. Not only have the number of cameras increased but today’s cameras systems have far more capabilities than those installed two decades ago, and when they are used alongside other technologies that were also not available when the CCTV camera program was launched, the risks to civil rights and civil liberties are great. Unfortunately, the law and our policies have not been able to keep up with the advancements in surveillance technologies.
Because this proliferation comes with significant privacy risks to communities, its critical for surveillance technologies like CCTV to be subject to clear checks and limits as to access, data retention and sharing, and capability.
We hope that the Council will take the concerns raised above into consideration and that it will request clarification and revisions from MPD before moving ahead with approval of any rule changes that could have a significant impact on the civil rights and civil liberties of District residents. Now more than ever, the District needs greater transparency, oversight and democratic accountability for local use and acquisition of all surveillance technologies, including CCTVs, and the ACLU-DC looks forward to working with the Council and community partners to address this critical need.