1/31/2011

By Tom White

In my previous post, I referred to a few famous incidents of police on camera.

In the abstract halls of academia, we see the camera—at least as applied to public officials, including police officers—as a good thing: it provides better evidence for the jury when a crime is committed, it exposes misconduct when it exists, and it provides accountability to the electorate.  The defenses that arise are classic defenses against transparency: the observed people can’t do their job properly if they are observed; the armchair quarterbacks behind the camera will never properly relate to the job as it exists.   Put another way, you never know what happened before the camera was turned on.

So the dialogue continues.  When a new video of purported misconduct is released, the police are attacked by some and defended by others.  On the internet, where anonymity is as relied-upon as it is nonexistent, the comments ring in bluntly. 

On one side, it sounds like the defense to a 1960s rape trial: he was asking for it.

On the other, the officers are authority figures whom the viewers distrust, their behavior is abhorrent, and they should be called names because they are acting in an inappropriate fashion.

A few people weigh in in the middle: we don’t know what happened before the video was turned on, and perhaps there is some blame to go round.

It is clear that a video protects the legal rights both of the accused and of the police officer, and makes it more difficult to lie to a judge, a jury, or an electorate.  It makes both corruption and the abuse of power more difficult.  But this does not mean that recording police conduct has no potentially negative effect.  Specifically it has three potentially negative effects: (1) the observer effect, (2) the misalignment problem, and (3) the metaobserver effect.

The observer effect refers to changes to the behavior of the observed persons that occur because they are being observed.  For example, these changes may interfere with legitimate police activity in a chilling manner, like the chilling effect on legitimate speech that is caused when any arguably similar speech is banned.  Similarly, these changes may precipitate more grandstanding on the part of people confronting officers, who are aware their behavior will be broadcast on the internet: consider the recent videos released of people going through or refusing to go through TSA full-body scanners. 

The misalignment problem arises when the legal rights of the individuals or of the police force are not properly aligned with their “street rights,” that is, with what they think their rights are.  Cameras generally work to correct the misalignment problem, but opponents may argue that there are many situations where the law does not reflect the reality in the field, or perhaps even the reality as it ought to be.  The legitimate solution in these cases is to change the law.  Realistically, this is the largest class of legitimate problems with the recording of public officials: the distinction betweenwhat ought to be on the one hand and what is on the other.  Officers or people who believe they should do more than the law allows to accomplish an end evade legal culpability by a combination of political means and a lack of evidence.  Ethically, officers and other citizens are duty-bound to follow the law.  Normative preferences, such as personal morality, might lead an individual to break the law—and it is in these cases that recordings are most problematic for the lawbreaker, as they are evidence of misconduct that, to the perpetrator’s mind, should not be misconduct.

The final consequence of recording may be the metaobserver effect: the effect on those who observe of observing.  Psychologically, this may be a significant issue—the arguments against the sale of Grand Theft Auto to minors, for example, rest on the damage to the minor that is arguably caused by such exposure.  But morally, it would be unconscionable to allow this as a legitimate defense to recording the activities of our police forces.  We should be aware of the costs of our freedom.

These problems, taken together, seem to favor allowing the recording of public officials on official business.  Yet favoring recording is always problematic: privacy is linked inherently to individualism, and we prize individualism as the basis of democracy and of pluralism.  And one single act, recorded, can cost a good officer or employee his or her job despite years of good service—recordings decrease the ability of individuals to escape extreme negative consequences of isolated incidents, or of incidents that, by accident, become public. 

But does the lack of privacy associated with recording limit the individualism we expect of our public servants?  Is it the recording of the misdeed that costs the person his job, or his company’s fear of legal liability in the event of a repeat misdeed?

It is not an easy change.  But in a world where every phone is a camera, perhaps every person should be allowed to record their interactions with public officials.

What do you think, reader?