A new bill was introduced on Dec. 28 during the lame-duck session of the New Jersey Legislature that would restrict the disclosure of police body camera footage and require the consent of each subject recorded in the footage.
Sen. Anthony Bucco (R-25) issued a press release Thursday afternoon about the bill that framed the proposed legislation as a way to counter the exploitation of young New Jersey residents by people who file public records requests in “bad faith.”
“Body-worn cameras have revolutionized police transparency but unfortunately, there are some bad actors who have abused the OPRA system to exploit young individuals in an effort to benefit financially,” Bucco said. “Footage from body-worn cameras, and OPRA requests as a whole, have a legitimate public interest and should be widely available for their intended use, not for YouTubers to get clicks.”
Under the provisions of Senate Bill 4261, a person who has obtained a body-worn camera recording through the state’s Open Public Records Act who is not a subject of the body-worn camera recording is prohibited from disclosing the recording without the prior written consent of each subject of the body-worn camera recording, unless the disclosure is for a legitimate public health or safety purpose, or compelling public interest.
A person who violates the law would be guilty of a disorderly person’s offense. The subject of the recording could also file a lawsuit against anyone who discloses the video without their permission. The court would be permitted to award damages and attorney’s fees.
Under the bill, “body worn camera” is defined as a mobile audio and video recording system worn by a law enforcement officer. Subjects of the videos that would be covered by the law would include suspects, victims, detainees, “conversants,” “injured parties,” or “other similarly situated person who appears on the body-worn camera recording and does not include a person who only incidentally appears on the recording.”
Disclosure of the body police body camera footage that would be forbidden without a subject’s permission includes “selling, manufacturing, giving, providing, lending, mailing, delivering, transferring, publishing, posting, distributing, circulating, disseminating, presenting, exhibiting, advertising, offering, sharing, or making available through the Internet or by any other means” the video or audio.
Public access advocates argue that the restrictions could be a form of prior restraint – which is government action that prohibits speech or other expression before the speech happens and say the law could mean more work for public records custodians. But they also have bigger concerns about the implications of the proposed law.
“This bill makes it a crime to even show someone else the video without the consent of the subject of the videos, which you probably have no way of getting unless it’s some undefined public interest,” Attorney C.J. Griffin said. “Hopefully this unconstitutionally vague prior restraint has no chance of passing.”
Griffin said if the bill becomes law, it would result in endless litigation over people bickering about what constitutes an undefined public interest. “You’ll have people suing over DUI videos. Press aren’t excluded,” Griffin said. “If you got a video and even showed it to a single person, you’re guilty of a crime and liable?”
Attorney Walter Luers agreed with Griffin about the issue of prior restraint and said the bill appears to have been rushed and needs a lot of work.
“First, it creates upon passage a cause of action against anyone, including journalists, who have already put out body-worn camera footage on the Internet. There is no notice and take-down time period. There is no future effective date. There is no prior notice,” Luers said. “The bill doesn’t define who a subject is. It restricts distribution of any kind, so theoretically, an attorney couldn’t give it to their client.”
Luers said a less restrictive way to implement privacy measures for the subjects of police body camera footage would be to pixelate or blur the faces and other body parts of people whose images are captured in police body camera video footage.
“I’ve read the press release about S4261 but haven’t seen the text of the bill posted yet. I am troubled by the apparent practice of posting videos of young persons on social media that depict traffic stops,” Luers said. “But I am also concerned that this proposal may not be the least restrictive way to address that problem. I look forward to reading the full text of the bill and gaining a better understanding of its proposed restrictions.”
Numerous free and inexpensive video editing software programs and apps can blur faces throughout a video with a few clicks of a button. Software like AI Automatic Detection by CaseGuard Studio allows you to automatically blur not only faces, but also license plates, paper, cars, credit cards, checks, and more. Once you select what you want to be redacted and with what effect, the redaction process begins automatically. CaseGuard charges a monthly fee for the service but numerous other apps are free or require a smaller monthly or annual fee.
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