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Police Body Cam Footage Won’t Be Considered Public Record Under North Carolina’s HB 972

“Black Lives Matter”

“Hands Up, Don’t Shoot”

“Blue Lives Matter”

Everyone’s familiar with these phrases that have been strung across the media lately. Issues surrounding police incidents and racial profiling have been all over the news since the Ferguson shooting in 2014 and things are only getting worse. As tensions increase between law enforcement and the public, states are in a scramble to balance the issues. North Carolina Governor Pat McCory has signed a bill into law that will no doubt ruffle some feathers.

Under House Bill 972, police body camera footage will not be considered a matter of public record. North Carolina isn’t alone, at least 30 states are considering some form of legislation that would limit public access to footage. So, why is this such a problem?

Lack of accessibility to body cam footage could mean, to some, a lack of police accountability. No accountability means no incentive to improve behavior. With open access laws to public records, HB 972’s exclusion of body camera footage as a public record presents a problem.

Open Record Laws Vary Across the Board

While the Freedom of Information Act governs federal bodies, every state has some form of open record law allowing members of the public to obtain documents from state and local government bodies. What counts as a public record? For the most part, states define a public record broadly. North Carolina defines public records as:

“ …all documents, papers, letters, maps, books, photographs, films, sound recordings, magnetic or other tapes, electronic data-processing records, artifacts, or other documentary material, regardless of physical form or characteristics, made ore received pursuant to law…”

Looks to me that body cam footage would be inclusive. Even though it’s broadly written, there’s little room left to argue that body cam footage shouldn’t be considered public record—body cam footage made while an officer is on duty is, by definition, a public record. Body Cam

HB 972 specifically exempts body cam footage from inclusion in this list. Footage can only be disclosed to a person whose image or voice is on the recording. When determining whether to fulfill a request, agencies can consider:

  1. whether the requesting party is authorized to make a request,
  2. whether the recording contains information otherwise confidential or exempt under state law,
  3. whether the disclosure would reveal information regarding a person of a highly sensitive nature,
  4. whether the disclosure would harm the reputation or jeopardize the safety of a person,
  5. whether the disclosure would create serious threat to the fair, impartial, and orderly administration of justice, and
  6. whether confidentiality is necessary to protect an active or inactive criminal investigation or potential investigation.

These factors leave a lot of room for interpretation. Requests can be denied and will only be released by court order. The ACLU stated “body cameras should be a tool to make law enforcement more transparent and accountable to the communities they serve but this shameful law will make it nearly impossible to achieve those goals.”

Public Records Offer Accountability, but Transparency Isn’t Always a Good Thing

Accountability is obviously the biggest reason why supporters say body camera footage should be public record and, by definition, they’re not wrong. Transparency offers that accountability the public wants—if the officers know they’re being recorded then they’re less likely to deviate from protocols.

Not only do they offer accountability, but many argue exposing the footage to the community will open the eyes of the many that don’t understand the tough decisions police officers have to face on an everyday basis and, thus, only improving the relationship between civilians and police.

On the flip side, privacy reasons are of number one concern. Body cams raise more issues than dash-cams because there’s the possibility of recording inside private residences or other places where individuals have an expectation of privacy. Anyone see a 4th Amendment unreasonable search and seizure issue here?

It’s a Balancing Act

Allowing access quickly is definitely important in cases where police misconduct is alleged, not just for the individual involved, but for the safety of police officers and the surrounding community as well. However, because of the constitutional issues surrounding body camera footage there definitely needs to be a balance between the public’s right to the information with an individual’s right to privacy, especially when you have a hot button issue like police brutality and racial profiling as a factor.

Body cam footage can often times record people at their worst and, despite a need for police accountability, footage shouldn’t be released to just anyone. Who wants their drunken arrest or private information blasted all over the internet by some blogger? Most would say no thank you.

Just as any other public record, footage would be subject to certain exemptions and North Carolina’s law is no different—implementing an extra law limiting the access even further seems unnecessary. I’m all for legislation implementing a process for which interested parties can gain access to footage, but it shouldn’t be difficult to nearly impossible to do so either.

Will Clinton’s Email Controversy Benefit Whistleblowers?

Is Hilary Clinton any different than Edward Snowden? Well, there’s one major difference between the two—Snowden purposefully leaked top-secret documents on U.S. surveillance programs whereas Clinton claims no such thing in how she handled classified emails.

Despite the fact Clinton may have had no intentional or malicious intent, there are plenty of other government employees who have gotten the axe for much less. Does the fact that Clinton was not indicted for mishandling classified emails mean whistleblowers are off the hook?

If you’re not familiar with the Clinton email controversy, here’s the low down. As Secretary of State, Clinton used her family’s private email server for official communications that should have been used on the official State Department email accounts located on federal servers.  Why the big deal?  Well, thousands of these emails were later marked as classified, posing a potential security threat if on the off chance any of those emails were hacked.

While many seem split on whether Clinton committed a crime, others say it’s likely she violated government procedures and rules but didn’t violate the law in and of itself. Clinton acted “extremely careless”, according to FBI Director Comey, but no laws were broken. Clinton

Contrast with Edward Snowden, a former government contractor who purposefully leaked national security information from the NSA, who is obviously pretty peeved no charges were brought against Clinton considering he’s facing up to 30 years in prison if he steps a foot back into the U.S. In a Twitter post, Snowden’s response to the news was more than unenthusiastic:

“Break classification rules for the public’s benefit, and you could be exiled. Do it for personal benefit, and you could be President”

Whistleblower Protection Act Only Offers Protections to Some

The 1989 Whistleblower Protection Act protects federal employees from agency backlash for whistleblowing.  Even despite the law, many employees were often fired, demoted, reassigned, or lost their security clearances after stepping forward against their government employers.  At the beginning of Barack Obama’s presidential campaign, one thing he promised was to strengthen the laws to better protect whistleblowers from negative repercussions.

Obama promised to speed up the review process of claims and grant whistleblowers full access to jury trials and due process. Although he followed through on part of his promise, one area remains unprotected—free speech protections don’t extend to whistleblowers in the intelligence community.

Obama did, however, pass an executive order appearing to extend the same protections to the intelligence community by allowing them to use internal channels, rather than the media, but many advocates suggest this is merely a façade and doesn’t afford the same protections as a Congressional law.

Does Clinton’s Lack of Indictment Set a Precedent Offering More Employee Protections?

Despite Clinton’s reprieve, the government’s insistence on punishing secrecy violations shows no sign of a change. As with any other criminal case, situations will be investigated on a case-by-case basis, which means Clinton’s lack of indictment isn’t going to offer any sort of blanket coverage, especially when you consider the fact that the Obama administration has prosecuted more leakers under the 1917 Espionage Act than all prior administrations combined.

In 2015, David Petraeus, former CIA Director, plead guilty to a felony charge of unauthorized removal and retention of classified information for providing his mistress with classified information. Petty Officer First Class Kristian Saucier used a cellphone camera to take photos in a classified engine room of the nuclear submarine where he worked as a mechanic.  In May, he entered a guilty plea for unlawful retention of national defense information.  These are just a few examples.

Regardless of whether protections are offered under whistleblower laws, none of them would have protected Snowden.  One important thing to remember is that whistleblower protection, whether at the government or private level, are only triggered if employees go through the appropriate channels—not leaks to the media.

Even so, where are the protections when, in cases like Clinton or Petty Officer Saucier, information is simply mishandled without malicious intent?  These kinds of cases where information is mishandled shouldn’t even warrant criminal charges, but nonetheless, they do and there definitely seems to be an imbalance in terms of who gets prosecuted and who doesn’t.

 

U.K. Grandmother Wins Right to Use Daughter’s Frozen Eggs to Give Birth to Grandchild

Would you ask your mother to carry a child for you?  It’s obviously not the most ideal situation, but it’s not completely unheard of.  A U.K. woman has won the rights to use her deceased daughter’s frozen eggs to give birth to a grandchild.

The 60-year old woman fought The Human Fertilisation and Embryology Authority (HFEA) to allow access to her daughter’s frozen eggs, but was denied because the daughter had not given her full written consent prior to her death to allow her mother to be a surrogate.  The daughter, identified only as “A”, died of cancer at the young age of 28, but had expressed to her mother, identified as “Mrs. M”, that she desperately wanted her mother to have and raise her child after her death.

After being denied, the parents planned to take their daughter’s eggs to a fertility clinic in the U.S. to be impregnated with donor sperm, but HFEA refused to let the parents do so. The parents brought legal action and were denied by the High Court; among a myriad of reasons, the Court of Appeal ruled in favor of the parents and remitted the case back to HFEA for further consideration.

A daughter’s wishes should absolutely play a role in any decision about what’s to happen with her own donor eggs, but U.S. laws don’t always play by a biological (or contracting) mother’s wishes.

Some Surrogacy Laws in the U.S. Consider the Surrogate the Mother

There are cases throughout the U.S. where a grandparent gives birth to a grandchild via surrogacy. For those that desperately want a child and are unable to have one on their own, this can be a saving grace. I imagine in the cases, like above, where a grandparent is the surrogate this is a non-issue, but what happens when the surrogate doesn’t want to give the baby up to the contracting parents?  Legally speaking, many states would recognize the surrogate as the legal mother. Infant 2

Laws surrounding surrogacy aren’t regulated by the federal government, but rather the states are left to decide and they vary throughout the U.S.  Seventeen states are considered surrogate “friendly” and recognize some form of surrogacy agreement. There are however states, 5 to be exact, that absolutely refuse to recognize any kind of surrogacy agreement.

What does this mean?  Well, in those states that won’t recognize an agreement, the biological parents are out of luck if the surrogate decides to keep the baby—in these states, the surrogate is considered the legal mother of the child.

Surrogates and contracting parents in some states even risk potential criminal charges.  California recognizes all surrogacy agreements, whereas Michigan considers it a felony to enter into such a contract. You read that right, a felony!

Child Custody Goes to Legal Parent

What does that mean for the biological or contracting parents?  Would they have custody rights?  Just as with any other legal issues surrounding child custody, custody is going to whomever is considered the mother of the child according to state law, whether that be the birthing mother or the biological mother.

California says child custody will go to a contracting parent, regardless of biological ties.  Michigan says the woman that gives birth to the child is the legal mother of the baby, despite the fact that she may not have any biological ties.

In states like Arkansas, which has a strange mix of surrogacy laws, the biological father and his wife would be recognized as the legal parent.  This is true even if the wife isn’t the biological mother.  Seems a little strange, but if you had biological donors that were not married, then the biological mother could potentially get gipped out of legal rights.

In order for an unmarried biological mother to automatically get legal custody rights of the baby in Arkansas, the biological donor father would have to be from an anonymous donor. The woman that gives birth to the child is considered the legal mother of the baby, despite the fact that she may not have any biological ties.

Laws surrounding surrogacy are primarily geared towards the rights of the surrogate or the rights of the biological parents.  Wait a minute, anyone see something wrong with that sentence?  Of course the rights of a surrogate and contracting parents are important, but what about the rights of the child?  Although U.S. surrogacy laws are by far the most progressive compared to other countries, we still have a long way to go.

Pokémon Go and the Dangers That Come With It

It looks like Pokémon is back at it again. Pokémon Go, the latest product in the Pokémon franchise, has caught on like wildfire. This new app, developed by Niantic, brings a fresh perspective to gaming. Available on both iOS and Android devices, this mobile game allows players to catch Pokémon but must do so in real time. With GPS capability, the app pinpoints where Pokémon can be found and the player then must make the effort to actually go to these locations.

Once there, the player can then attempt to catch the Pokémon. These Pokémon can be found in various locations, from your backyard to public venues and even in government facilities such as courthouses. As this game takes the world by storm, the dangers of this form of gaming have become more apparent. Just as texting and driving has been such a big problem, the same issue could arise with this new app.

Potential Hazards

The Pokemon app demands that the player explore the outdoors if they want to catch Pokemon. Irrespective of this game, mobile devices can be dangerous. Texting and driving has been one of the leading causes of death in the past few years. Pedestrians too have put themselves in risk of danger by crossing the street carelessly while being preoccupied with their smart devices.

Surely, this Pokémon app could pose similar dangers. The game has been out for less than two weeks and there are already news reports of such accidents. One victim reported that he was “wandering aimlessly looking for Pokémon” when a car clipped him. As the game picks up speed, similar reports will undoubtedly come in. Now the question becomes, what can be done about this? Pokemon Go 2

To address this issue, let’s look back at some of the solutions that were reached when it came to driving and texting. For one, California imposed a law that would fine people who were driving and texting. Without a doubt, this has had deterrent effects. Looking at the accident reports as a whole, the numbers have waned due to this law. Can a law be enacted mandating that gamers not cross the street while playing Go?

Now this sounds silly but there have to be some measures that can be taken. Obviously the same aforementioned law applies here because the Go is a mobile game and as such, is on a mobile device. Ultimately, the question becomes what measures can be taken to prevent such incidents from happening and who should be held responsible for them?

Comparative Negligence

The gamer should obviously be held responsible for being careless and negligent. Of course, the degree of blame should also depend on who the gamer is and in particular, how old they may be.

If a 12-year-old has carelessly walked into the street, then they might not have known any better. Now, if it was a fully grown adult doing the same, then this could change things. Comparative negligence, which is the standard of fault in California, adjusts the degree of fault for all the parties involved, depending on the circumstances of the case. This standard applies primarily to personal injury lawsuits. For example, if the gamer is crossing the street when he should have stopped, then the driver who hits this person will not be entirely at fault for the accident.

The point being, if more states adopted this comparative negligence approach, it would make life a whole lot easier for both parties involved in the accident. It also provides a deterrent. The gamer so preoccupied with catching his Pokémon will stop and think because now he knows under this framework, he would potentially have to pay for his own injuries if he isn’t careful. At the same time, the driver will have a defense, which is that the Pokémon devotee was being rather careless.

Trespass

Now this comparative negligence approach is not universal in that it does not apply to all incidents. It applies mainly to personal injury lawsuits. For example, what would happen if the player finds himself in someone else’s private property and the property owner decides to take matters into his own hands? How should this be resolved? Obviously not through the comparative negligence standard.

Each state has its own particular set of laws with regards to gun control and what trespass dictates. These sets of laws will help guide the well-being of people. For now, we will just have to wait and see what our legislators will do in response to this new groundbreaking form of entertainment. This only feels like the beginning. With virtual reality and this “augmented” reality taking shape, who knows which direction we’ll be headed from both a lifestyle perspective as well as a legal one. For now, enjoy and make sure you catch as many lovable Pokémon as you can. Safety first though.

Other Legal Considerations

As mentioned, Pokémon Go is sending ripples through the legal space. Besides personal injury, other areas of the legal field that are facing questions due to the Go are in privacy and intellectual property. In terms of privacy, it is a question of how to protect individual privacy. Go collects account information, location data, and other such data collected through web beacons and cookies.

There are also certain privacy issues at play here. How far can Niantic go in acquiring such data and what can they use this data for other than the game itself? There are intellectual property issues as well. Does catching a Pokémon make that Pokémon your personal intellectual property? This is a bit absurd but it is questions like this that have been coming up. In the meantime, we are left to ponder how this new gadget is changing the legal landscape.

Facebook Accused of Funding Terrorist Activity

Facebook is being accused of funding terrorist activity in the West Bank region. A family of Israeli and American citizens have brought forth a lawsuit seeking $1 billion in damages from Facebook for supposedly funding Palestinian military attacks. Palestine and Israel have been in conflict for many decades now and it is an issue that has no end in sight.

There are many underlying factors to the conflict, including religious difference, territorial claim, and regional dominance. Countless lives have been lost from both sides. The plaintiffs too have lost relatives in the conflict and they now seek damages from Facebook because they believe Facebook has supported Hamas in its attacks against Israel. Hamas, which is a pro-Palestinian movement, has been considered a terrorist organization by many nations.

Myriad of Accusations

This is not the first time that Facebook has been accused of such claims. Other such claims against Facebook are that, as a conduit of information, it gives FBI access to its user accounts, or that Facebook has some sort of hidden agenda unbeknownst to the general public. Of course, there is not much evidence to support such claims yet these charges do pop up every now and then. And it is not just Facebook.

Other social media outlets such as Twitter have been under attack too for supposedly promoting terrorism. ISIS, which has been grabbing headlines for the past few months, has been using the Twitter platform as a means of recruitment and sending out its message, and Twitter has seemingly done nothing to stop this.

Facebook and Twitter Comparison

For sake of comparison, the Twitter and Facebook claims have similarities and differences. In Twitter, there is indication that ISIS is using the platform as a vehicle to promote its agenda. However, under the First Amendment, which permits freedom of speech and press, it is hard to charge someone simply for expressing their viewpoints. Granted, ISIS propaganda should be put to a stop but where do we draw the line.

Should constitutional rights be diminished in order to promote national security? The government should not violate First Amendment rights when it can help it. There are times when the government, for security purposes, will make an exception. In any event, the benefit of the doubt will be given to the Constitution. Not all ISIS related posts will be grounds for criminal charge. Hamas Facebook

Likewise, with Facebook, if there are posts on the platform that in some way support Hamas, this is not grounds alone to go after a user, let alone Facebook itself. Under the Communications Decency Act of 1996, service providers such as Facebook and Twitter cannot be held personally liable for content that is published by their users.

The difference between the two scenarios however is that there is no indication that Twitter directly promotes ISIS activity. However, with Facebook, although there is currently not enough evidence, if it was established that Facebook did directly support Hamas through promotional material or other means not associated with user content, then there might be a valid claim. Even then, the First Amendment might prevent such claims. Until more hard evidence actually emerges, it will be very difficult for these grieving families to put up a decent claim against Facebook.

Many times, false accusations are thrown at big corporations such as Facebook in the hopes that that they can snatch the big prize. I am not implying that these particular plaintiffs fall in this category, but false accusations are common, especially against a large corporation such as Facebook. Media conglomerates such as Fox and Time Warner have been accused of such things too. It does not start and end with media industry either. Sometimes, these accusations should be taken with a grain of salt.

Preemptive Measures

People are not yet ready to give up their basic rights. As Benjamin Franklin said, “Those who surrender freedom for security will not have either one.” This is a powerful statement that resonates today with all of us.

However, Ben Franklin lived in a completely different time with very different issues at play. Today, international terrorism has become a huge threat and only tightening down on security measures can we hope to combat such a threat. If it means giving up some rights for the greater good, then this is something that we should consider.

And just as these social media outlets are used by terrorist organizations to convey their message, they can also be used to create awareness among communities to unite and stand against such a threat. Social media has been the trigger for many events these past few years, such as the Arab Spring and the Brexit deal.

Social media is a powerful tool that can be used to bring change, for better or for worse. Who uses it and how they use it can have consequences as well. Preemptive measures can be taken through these outlets to combat terrorism and to address other issues as well.



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