Letter to U.S. Customs and Border Protection on Body-Worn Camera Program

Chris Magnus
Commissioner, U.S. Customs and Border Protection
1300 Pennsylvania Ave. NW
Washington, DC 20229

Via staff email:

Subject: Suggested changes to CBP’s Incident-Driven Video Recording System policies

Dear Commissioner Magnus:

Thank you for the opportunity to meet with your staff on February 10, 2022, to discuss Customs and Border Protection’s (CBP) policies governing its Incident-Driven Video Recording System (IDVRS). We are pleased to hear that the agency is amenable to strengthening its policy governing the use of body-worn and dashboard cameras to support accountability and protection of individuals and communities impacted by the new program.

There are several elements of the discussed policy that should protect members of the public and agents alike, as well as prevent the cameras from being used as a possible instrument of general surveillance. However, we are concerned that some components of the policy do not provide minimum safeguards to ensure accountability and oversight.

We recommend the following:

• CBP should more clearly prohibit officials from viewing body-camera footage before writing initial reports and ensure that those initial reports are preserved.
• CBP should require and create a process separate from the Freedom of Information Act for timely release of video footage to the public, particularly individuals whose encounters with agents are recorded.
• Given the impact that this new program will have on border communities, migrants, and the general public, we also request that CBP convene several regional forums to solicit and incorporate border stakeholders’ direct input. CBP has worked closely to incorporate law enforcement perspectives in the development of this policy; it is vital that it work just as closely with affected communities.

We look forward to follow-up meetings to discuss these recommendations and the more detailed comments that follow.

General Suggestions

We are concerned by the definition of “enforcement encounter” upon which the recording policy is built. Section 6.4, which sets out the definition of enforcement encounter, focuses on when video footage would “assist the investigation or prosecution of a crime” and the recording of potential illegal activities, rather than a set of circumstances focused on when civilians would be at risk. The current framing promotes using body cameras as surveillance tools rather than for accountability, and it makes it less likely recording will be turned on and off at the right times.

We suggest the following language instead:

• Throughout the policy, recording should be required beyond circumstances framed as an “enforcement encounter.” That requirement should include when officers encounter any members of the public, explicitly including persons held in CBP detention facilities, or when they enter private property.
• In Section 2.3 and elsewhere, we suggest replacing the word “event” with the more specific term “encounter.”
• In Section 2.6 we recommend replacing “may” with “shall” in the following sentence — “Any unauthorized access, use or release of recorded data, or other violations of confidentiality laws or Department of Homeland Security (DHS) and CBP policies may result in disciplinary action.”
• In Sections 5.1 and 5.2, the “Background” statement should clarify that IDVRS have demonstrated that they can be tools to both establish facts and “provide transparency.” It is important to recognize the risks presented by IDVRS technology in this section to ensure they are adequately accounted for in the policy. For example, we recommend amending Section 5.2 to include the disclaimer that, “If viewed prematurely, footage from camera technology can compromise the authenticity of first-hand officer witness statements, and if footage is selectively released to the public, it can provide an inaccurate picture of the events the technology captured in the field.”
• Finally, the policy should clearly state that video footage may not be analyzed by CBP or outside entities using other surveillance tools, including facial recognition technology.

Review of Footage by Personnel in Incident

The policy should clearly state that officers cannot review footage before writing initial reports.

Several sections of the policy currently appear to contravene this mandate:

• Section 2.5 appears to allow officers to review before submitting their reports.
• Section 5.2 lists pre-report review as one of the purposes of cameras.
• Section 8.9.1 states that “authorized IDVRS users should not review IDVRS prior to writing initial reports of use of force or critical incidents.” (emphasis added).
• Sections 8.9.2 and 8.9.3.1 currently could be read as an exception to Section 8.9.1, which prohibits the viewing of footage prior to writing initial reports on use of force or critical incidents. Clarification should be added that neither of these provisions constitutes an exception to Section 8.9.1.

The policy should also make clear that the officer’s initial statement will be preserved and could be subject to disclosure in any relevant criminal or administrative proceeding.

In addition, Section 7.2.2 states that the components should ensure that access to recorded data is “limited to authorized personnel with a need to know.” There should be circumstances delineated that clearly state who can and cannot have access when the footage is of potential evidentiary value. For example, a use of force incident should trigger exclusion of access to footage by any or all officers involved in the incident.

We recommend that for all use of force incidents and other serious allegations of misconduct access to footage be regulated under an “opt-in” system whereby the supervisors identified in Section 6.3 — an Executive Assistant Commissioner (EAC), the USBP Chief, an Assistant Commissioner (AC), or equivalent — must formally approve, in writing, access by named individuals rather than by categories of employees.

Release of Footage

The policy should contain additional provisions to ensure FOIA exemptions are not misused to withhold footage from the public or those filmed, including those seeking redress for CBP wrongdoing and for whom an encounter captured on the IDVRS would be relevant. In addition, it should further provide for release of the footage beyond FOIA and by order of the Commissioner.

The policy does not presently address rules for disclosure pursuant to requests from individuals recorded, the public, or Congress. Each of these requests is an essential feature of making body-worn cameras an effective accountability tool. Numerous cases have shown that refusal to provide access to footage of incidents creates distrust and harms police-community relations.

The following sections should be revised to address these concerns:

• Section 2.6 does not allow release of footage that may “compromise ongoing criminal investigations or administrative proceedings.” This is a significant barrier to timely release of footage in use-of-force incidents in addition to the multiple levels of approvals required under Section 8.11. These are precisely the kind of circumstances where the public understandably wants and demands release of the footage.
• Sections 7.7.2 and 7.7.2.2 should make clear that FOIA exemptions to prevent release of footage should not be misapplied to incidents recorded via IDVRS. These sections should be amended to read as follows:
  Body camera video footage may not be withheld from the public on the basis that it is an investigatory record or was compiled for law enforcement purposes where any person under investigation or whose conduct is under review is CBP personnel or a CBP officer and the video footage relates to that person’s on-the-job conduct.
• In Section 8.11.3, the following provision should be added to the list of select circumstances that allow for the expedited release of footage:
  Responses to FOIA requests for footage, where a subject of the video footage is recorded being killed, shot by a firearm, or grievously injured, shall be prioritized and the requested video footage shall be provided as expeditiously as possible, but in no circumstances later than five (5) days following receipt of the request.

Finally, the policy should set forth a separate mechanism outside of FOIA for individuals captured on IDVRS footage to obtain a copy of such footage, as the purposes of FOIA are not meant to address the vital needs that such persons might have in timely release of the footage.

Redaction of Footage

Section 7.7.2 lacks a standard for redaction. We suggest adding the following language:

(1) Whenever doing so is necessary to protect personal privacy, the right to a fair trial, the identity of a confidential source or crime victim, or the life or physical safety of any person appearing in video footage, redaction technology may be used to obscure the face and other personally identifying characteristics of that person, including the tone of the person’s voice, provided the redaction does not interfere with a viewer’s ability to fully, completely, and accurately comprehend the events captured on the video footage.

(A) When redaction is performed on video footage, an unedited, original version of the video footage shall be retained.

(B) Except pursuant to the rules for the redaction of video footage set forth in this subsection, no other editing or alteration of video footage, including a reduction of the video footage’s resolution, shall be permitted.

Permitted Recording

There should be a strong presumption in favor of recording in all aspects of this policy. It should emphasize that in cases of ambiguity, officers should record.

Recording exceptions should be up to the judgment of the person whose privacy is at risk, not the officer, as the following suggested amended language in Section 8.6.1 would ensure:

(1) Prior to entering a private residence without a warrant or in non-exigent circumstances, CBP officers shall ask the occupant if the occupant wants the officer to discontinue use of the officer’s body camera. If the occupant responds affirmatively, the CBP officer shall immediately discontinue use of the IDVRS;

(2) When interacting with an apparent crime victim, CBP officers shall, as soon as practicable, ask the apparent crime victim whether they want the officer to discontinue use of the IDVRS. If the apparent crime victim responds affirmatively, the CBP officer shall immediately discontinue use of the IDVRS; and

(3) When interacting with a person seeking to anonymously report a crime or assist in an ongoing investigation, CBP officers shall, as soon as practicable, ask the person seeking to remain anonymous whether the person seeking to remain anonymous wants the officer to discontinue use of the IDVRS. If the person seeking to remain anonymous responds affirmatively, the CBP officer shall immediately discontinue use of the IDVRS.

(4) All offers by CBP personnel to discontinue the use of a IDVRS made pursuant to this subsection, and the responses thereto, shall be recorded by the IDVRS prior to discontinuing use of the IDVRS.

We also suggest the following changes with respect to “Prohibited Recording Activity”:

• In Section 8.7.1.5, we recommend replacing the term “reasonable” with the term “heightened” in the following sentence —
  “In places or areas where persons have a reasonable expectation of privacy, such as locker rooms, dressing rooms, or restrooms, unless related to official duties.”
• Section 8.7.1.6 should include stronger safeguards against invasions of doctor-patient confidentiality, and Section 8.7.1.8 should prohibit accessing footage to identify or conduct surveillance of individuals engaged in activity protected by the First Amendment.

Improvements to Auditing of Program

The policy should develop a mechanism to ensure that officers and agents are appropriately and consistently using the cameras, outside of reviewing footage of any particular use of force incident. This is especially important since Border Patrol operates in remote areas with virtually no public visibility. In particular:

• Section 7.2.12 requires that recorded data is audited but should be expanded to provide more details on what auditing encompasses and how regularly it will be performed.
• Section 8.9.5 prohibits recorded data from being randomly viewed by supervisors “for the sole purpose of identifying policy violations.” These provisions should make clear that footage may be viewed to ensure that officers are properly using the equipment as set forth in the IDVRS policy.

General Access to Footage and Storage

We were informed during the call that footage will be stored by a third party vendor. This is an important safeguard that should be explicitly codified in the policy, possibly in section 8.2 or 8.8.9.

Retention

We suggest that Section 8.8.5.3 clarify that any data recording of a use-of-force by CBP personnel must be placed in the “evidentiary” category, and the same rule should apply to any data that pertain to an allegation of personnel misconduct.

In Section 8.8.3, we recommend deleting the opening phrase “Unless instructed otherwise.”

Further, “use of force” in Section 6.4.1 should be revised to the following suggested definition:

any action by CBP personnel, including vehicle pursuits, that (A) results in death, injury, complaint of injury, or complaint of pain that persists beyond the use of a physical control hold, or (B) involves the use of a weapon, including a personal body weapon, chemical agent, impact weapon, extended range impact weapon, sonic weapon, sensory weapon, conducted energy device, or firearm, against a member of the public, or (C) involves any intentional pointing of a firearm at a member of the public.

Finally, we would like additional clarity on two aspects of retention. First, is the retention policy long enough given FOIA backlogs? Second, how does the retention policy apply when footage is part of an investigation?

Many thanks for your consideration of these suggestions, any and all of which we are glad to discuss further. We look forward to scheduling follow-up conversations at your earliest convenience to discuss this letter, as well as also to understand more clearly the way violations of the policy are addressed and the protocols CBP follows to provide footage to other oversight components like the Office the Inspector General, Office for Civil Rights and Civil Liberties, the Department of Justice, and state and local law-enforcement agencies.

Yours sincerely,

Human Rights Watch
Project On Government Oversight (POGO)
Southern Border Communities Coalition

cc: 

Bronia E. Ashford, Chief of Tribal and Community Affairs
Dan Herman, Senior Advisor
Remy Krumpak, Acting Executive Director of Policy