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Blog by Matthew Segal, legal director of the ACLU of Massachusetts

Since 2014, at least 14 people have been killed by police officers wearing body cameras that were either not turned on or not operational. Roughly two months ago, an officer in Charlotte failed to activate his body camera before fatally shooting Keith Lamont Scott. (On Wednesday, news broke that the officer who killed Scott will not face charges.) Days earlier, an officer in Washington, D.C., failed to turn on his body camera before fatally shooting Terrence Sterling. And this past July, an officer in Chicago failed to activate his body camera before fatally shooting Paul O’Neal in the back.

These unrecorded killings threaten to undermine confidence in body cameras. If these cameras are only as good as the police officers and departments responsible for deploying them, then their contributions to police accountability will depend on the very people they are supposed to hold accountable.

But it doesn’t have to be this way. As explained in “No Tape, No Testimony,” a new report by the ACLU of Massachusetts and the Samuelson Law, Technology & Public Policy Clinic at UC Berkeley’s School of Law, police officers and departments are not the only ones who can ensure that body cameras are used responsibly. Courts can do it, too.

Courts can influence body camera usage through a tool that is unique to courts: jury instructions. Consistent with provisions the ACLU recommends that state legislators put into law, the new report proposes a model instruction that would discourage body camera mishaps by empowering juries to devalue or even disregard a police officer’s testimony if, in the jury’s view, the officer unjustifiably failed to record an interaction with a civilian. Courts should consider trying it, for at least three reasons.

First, videos have profoundly shaken public confidence in the capacity of legal proceedings to separate fact from fiction based on witness accounts alone. In Massachusetts, for example, my office represents a woman who was initially charged with assaulting a transit officer after complaining to that officer about how she was treating another woman. But there was security footage showing that the officer actually attacked our client, and prosecutors dropped the case against her and began prosecuting the officer. But when video is absent, court proceedings can too often disadvantage civilians, whose claims can so easily be disbelieved when they contradict officer’s account.

Second, body cameras are probably here to stay, so it is important to ensure that they are used correctly. These cameras can help uncover the truth about violent police-civilian encounters and even deter violent encounters from happening in the first place — but only when they are consistently worn and activated.

Third, when police officers fail to turn on body cameras before shooting someone — as happened to Keith Scott, Terrence Sterling, and Paul O’Neal, all of whom were Black men — they put courts at risk of reaching catastrophically unjust results. A guilty police officer, someone with enormous power,  could escape liability. An innocent person could be wrongfully convicted.

Courts should not leave it up to the police to avoid these catastrophes. Accordingly, the model jury instruction in “No Tape, No Testimony” would enable courts to discourage body camera mishaps while also empowering juries to decide when those mishaps warrant consequences for the police.

If the jury finds that the failure to record was unreasonable, then the instruction would authorize the jury to devalue the officer’s testimony and to infer that the video would have helped the civilian. If the jury finds that the failure to record was due to bad faith — like intentionally sabotaging a camera — then the jury would disregard the officer’s testimony altogether. But if the jury finds that the failure to record was reasonable — for example, because the officer kept the camera off due to a department policy respecting civilian privacy — then the officer would suffer no evidentiary consequence in court.

Because it would have juries decide whether to say “no tape, no testimony,” this model instruction is hardly a radical proposal. In fact, courts in eight states — Alaska, Arkansas, Indiana, Massachusetts, Minnesota, New Jersey, Utah, and Wisconsin — already authorize evidentiary consequences that encourage officers to record custodial interrogations of criminal suspects. Adapting this approach to the body camera context would be straightforward.

But it would also be profound.

By issuing this instruction, state courts could improve the odds that violent police-civilian encounters will be recorded, and that courts will just resolve disputes arising from those incidents. And because President-elect Trump could halt the federal government's recent attempts to improve police accountability, the next big innovation in police-civilian relations might have to come from state courts. When appropriate, judges should allow juries to send a clear message to police witnesses: “No tape, no testimony.” 

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This month, we celebrate two ACLU of Massachusetts advocates who’ve been honored for their tireless work on behalf of civil rights and civil liberties.

Rahsaan Hall, director of the racial justice program at the ACLU of Massachusetts, has been named one of Get Konnected!’s 50 Most Influential Attorneys of Color in Greater Boston. The list marks the first comprehensive list of its kind, and celebrates attorneys of color who make positive contributions to the legal community and the economic and social fabric of Greater Boston.

In his role at the ACLU of Massachusetts, Hall helps develop the organization’s integrated advocacy approach to address racial justice issues. Through legislative advocacy, litigation, and community engagement, the program works on issues that deeply impact communities of color and historically disenfranchised communities. Hall recently managed the ACLU of Massachusetts’ What a Difference a DA Makes campaign to educate voters about the power and influence of district attorneys.

Dan McFadden has been honored as an “Up & Coming Lawyer” by Massachusetts Lawyers Weekly. This award recognizes Massachusetts attorneys who have been members of the bar for 10 years or less, but who have already distinguished themselves.

As a staff attorney at the ACLU of Massachusetts, McFadden litigates a broad range of civil rights and civil liberties issues, including in the areas of immigrants’ rights and criminal justice reform. Since joining the ACLU of Massachusetts in September 2018, McFadden has already contributed to multiple legal wins for immigrants and detainees and represented the family of a woman who died while in police custody. Prior to joining the ACLU, McFadden spent seven years at Foley Hoag, where he did extensive pro bono work.

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The outcome of a battle heating up at Google over the limits of employee free speech will have huge consequences for all of us. Will Google shut down internal dissent and silence whistleblowers? Or will the company live up to its initial motto, “Don’t be evil?”

In 2017, researchers Meredith Whittaker and Kate Crawford founded the AI Now Institute at New York University, with the goal of “produc[ing] interdisciplinary research on the social implications of artificial intelligence [in] four key domains: rights and liberties, labor and automation, bias and inclusion, and safety and critical infrastructure.” Since then, the group has published key research on race and gender discrimination in AI, public agency accountability, litigation related to algorithms, and more. (Full disclosure: The ACLU is a proud partner of AI Now.)

Both Whittaker and Crawford have strong ties to the tech industry. The former is the founder of Google’s Open Research Group, and the latter is a principal researcher at Microsoft. Both women still work for these companies, even though their work at AI Now often critiques the tech industry’s shortcomings and offers a perspective rooted in human and civil rights, instead of profit maximization — an unorthodox perspective in the Valley, to put it mildly.

For years, I’ve been impressed that Whittaker and Crawford could simultaneously work for and offer public critiques of these big tech companies and took that as an indication that Google and Microsoft are mature, if problematic, institutions. A willingness to tolerate internal dissent is important in any organization. Fostering such an environment is especially critical for companies like Google and Microsoft in the United States, where lawmakers have largely refused to impose regulations, leaving a dangerous amount of power in the hands of an elite — and often obsessively secretive — few in Silicon Valley.

But recent events suggest that at least at Google, executive patience with democratic debate and a culture of openness is wearing thin. According to press reports, Google has in recent months retaliated against both Whittaker and a fellow activist at the company, Claire Stapleton, after their successful organizing led to policy change at the nearly trillion dollar company.

In October 2018, The New York Times reported that Google had provided handsome exit packages to executives credibly accused of sexual harassment and assault in the workplace. The former head of the Android group, Andy Rubin, was paid $90 million to leave the company after he was accused of sexual wrongdoing. Google subsequently invested millions of dollars in a company controlled by Mr. Rubin. Then, in March of this year, the Times published yet more evidence that Google sought to protect powerful men accused of sexual malfeasance. The latest report showed that in 2016, Google paid executive Amit Singhal $45 million when he left the firm after an employee accused him of groping her at a work event.

But while Google provided golden parachutes to executives accused of sexual harassment and assault, the company simultaneously forced the victims of those incidents to take their complaints against the company through arbitration, denying them their day in court.

Googlers, led by activists like Whittaker and Stapleton, rebelled. In November 2018, 20,000 Googlers worldwide walked off the job, demanding the forced arbitration policy be repealed. The protest, joined by one in five Google employees worldwide, attracted global press and was devastatingly effective. Within days, the company announced it would eliminate the forced arbitration policy for people who spoke out about sexual harassment in the workplace. In February, facing further demands from workers, Google scrapped its forced arbitration clause entirely.

Whittaker’s organizing at the company hasn’t been limited to fighting for changes to the internal policy governing employee rights. She has been unapologetic in her defense of democratic values and has challenged Google’s work with the U.S. military and Chinese government. More recently, she was part of a group of concerned Googlers who protested the appointment of a transphobic reactionary from the Heritage Foundation to an external advisory board tasked with examining questions related to AI and ethics. That board was subsequently dissolved.

Now, Whittaker says, she’s facing retaliation from the company for her efforts to make Google a more accountable, equitable, and democratic institution. According to a letter she sent to co-workers, executives recently told her she would be forced to choose between her work with AI Now and her employment at the company. Claire Stapleton, one of the organizers of the anti-arbitration walkout, says she too has faced retaliation for her organizing, which included a demotion — only reversed when she hired a lawyer.

Google denies it retaliated against either employee. But last Friday, Whittaker and Stapleton organized a group of hundreds of Googlers to engage in a company-wide meeting about retaliation workers have faced across the world. According to them, over 300 people submitted their own testimonies that Google leadership has retaliated against them for their organizing. And Google employees are holding a sit-in tomorrow to protest retaliation they say employee organizers have faced.

In AI Now’s 2018 annual report, Whittaker and her colleagues wrote about the important role whistleblowers play at institutions like Google:

Technology companies should provide protections for conscientious objectors, employee organizing, and ethical whistleblowers. Organizing and resistance by technology workers has emerged as a force for accountability and ethical decision making. Technology companies need to protect workers’ ability to organize, whistleblow, and make ethical choices about what projects they work on. This should include clear policies accommodating and protecting conscientious objectors, ensuring workers the right to know what they are working on, and the ability to abstain from such work without retaliation or retribution. Workers raising ethical concerns must also be protected, as should whistleblowing in the public interest.

As Whittaker and her activist colleagues have demonstrated over the past few years, the world is watching Google and other big tech companies. The decisions these companies make about product design, political lobbying, and which technologies they’ll build and sell to which types of governments impact all of us and future generations. That’s why retaliating against Big Tech employees who push their employers to do the right thing isn’t just a threat to the individual livelihoods of those workers — it’s a threat to us all.

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