Smile, you're being recorded!
Following the American and European trend, Portugal is now one of the countries that has determined the use of Bodycams by the security forces in some situations.
The use of bodycams has been one of the oldest battles of the police security forces, which have been advocating for the use of this technological solution as a tool to ensure greater transparency and scrutiny in the performance of their activity. In the same vein, in 2020, the European Committee against Torture recommended the Portuguese Government to adopt the use of body-worn cameras as an additional safeguard against abuse by police officers, as well as a protection against unfounded allegations of ill-treatment.
Following this and during the discussion of the draft law and decree-law on the use of bodycams, the CNPD raised important concerns about the defense of citizens' privacy regarding the use of these systems by the security forces.
In particular, CNPD highlighted the fact that the law does not define who makes the decision to activate the camera, suggesting that it will be the security forces' officer. Therefore, the officer would be given a discretionary power to turn on the camera when one of the circumstances set forth in the law is met. Also, the CNPD considered that the principle of proportionality was not being complied with, as the proposed solution did not take into account the risk of the officer to decide if part or all of his action is recorded.
Lastly, the CNPD also recommended the possibility of recognizing the citizen himself/herself the right to request the recording of the police intervention involving the citizen, which failed to be adopted.
In this context, Law No. 95/2021 of 29 December was published, establishing the use and access by security forces and the ANEPC to video surveillance systems for capturing, recording and processing of images and sound. This regime is further specified by Decree-Law No. 2/2023 of 2 January, which defines the standards for placement, activation, signalling and use of bodycams, as well as the way of transmission, storage and access to data collected and its characteristics and technical requirements.
II. What are body-worn cameras?
Body-worn cameras (BWC) or bodycams are portable cameras installed in the uniforms of police officers, which record the image and sound of the incidents in which they are involved.
They differ from video surveillance systems using fixed cameras, since the latter record spaces and people indiscriminately and their lenses can, for instance, be remotely maneuvered to amplify or focus on a particular event. Unlike these systems, bodycams record the same as human vision - the lenses have exactly the same peripheral vision angle as the human eye - and will only be triggered in cases defined by law and according to the security forces' internal protocols.
III. The regime of use of bodycams
a) In which situations may be used?
Bodycams or "portable camera systems for individual use," as Law No. 95/2021 identifies them, should be used by polices officers, in "standby mode" with recording mode being activated only when at least one of the following circumstances occurs: (i) Commitment of criminal offense; (ii) Actual and unlawful aggression directed against the police officer himself or third parties; (iii) Disobedience and resistance to lawful and legitimate orders from a police officer, in the exercise of its functions;(iv) Dangerous or emergency situation or in an operation involving risk to the police officer or to third parties; (v) Action to arrest or prevent the escape of a person suspected of committing a crime punishable by imprisonment; (vi) Operation to arrest an escaped person or a person subject to an arrest warrant; (v) A situation that disturbs public order.
Additionally, it is mandatory to activate the recording of the bodycams in police interventions, when: (i) Public force is used on any citizen, namely when the procedure of physical restraint or handcuffing is applied; (ii) Any coercive means or police weapons are used, especially firearms; (iii) Orders are issued to suspects regarding the cessation of illegal or aggressive behavior and the adoption of security positions.
It should be noted that recording in the situations listed above does not require the consent of the subjects of the recording.
The law provides that recording should be triggered, whenever possible, before the start of the intervention or the incident that motivated it, or as soon as possible, depending on the circumstances. Since the bodycam is in standby mode, this allows the capture of the 30 seconds prior to the start of the recording, while the captured data will be deleted if the recording is not activated.
With regard to transparency, the use of bodycams for image and sound recording shall be subject to a clear perceptible verbal announcement in advance where the nature of the service and the circumstances permit. Once the recording has started, the verbal announcement must be repeated and followed, as soon as possible, by a verbal reference, which should include, where possible: (a) The nature of the event that prompted the recording; (b) The witnesses present at the recording location. However, and in this regard, the diploma is silent as to the procedures in the case of occurrences involving individuals with visual and audiovisual impairments.
Law 95/2021 additionally provides that the indiscriminate or permanent recording of facts that have no evidential relevance is prohibited.
b) Camera display mode
Bodycams should be either attached to the uniform, close to the front and upper torso, or, if this does not ensure image capture, attached to the police officer's equipment, in a visible manner and without obstacles that prevent the full coverage of its angle of capture.
The law provides that the officer must endeavor to affect the image rights to a minimum and to respect and preserve the citizen's dignity, and in particular, recordings of personal inspections that involve the exposure of intimate areas of the body are prohibited.
c) Data storage
Decree-Law No. 2/2023 has established the mandatory safety measures to be complied with in the management, access and use of this system, as well as its minimum technical requirements. Regarding the retention period, recorded data may only be stored for a period of 30 days, with the exception of recordings submitted as evidence in legal proceedings or disciplinary procedures.
IV. Final Remarks
Although it is expected that the first 2,500 portable cameras for individual use will arrive in November this year, it remains open to discussion whether there are sufficient guarantees to ensure that the use of the bodycams will not give rise to more discrimination or used disproportionately. We look forward to see whether bodycams will effectively be a technology that guarantees the protection of privacy and the security of citizens.
Article provided by INPLP member: Ricardo Henriques (Abreu Advogados, Portugal)
Co-Authors: José Maria Alves Pereira and Matilde Ortins de Bettencourt
Dr. Tobias Höllwarth (Managing Director INPLP)