(Brendan Smialowski/Agence France-Presse via Getty Images)

On several occasions here at The Watch, we’ve noted that while police body cameras are an important step toward transparency and accountability in law enforcement, they’re only as good as the policies that govern their use. With the wrong policies, they can even be counterproductive. You may remember that last month, the company formerly known as Taser International — now known as Axon — offered free body cameras and video storage to every police department in the country for one year. But as Tim Cushing writes at TechDirt, the offer wasn’t without a cost:

The company was willing to give away cameras in exchange for something far more lucrative: software licensing and footage access fees in perpetuity.

Axon even nailed down a choice URL: Evidence.com. This is the portal to law enforcement body camera footage stored in Axon’s cloud — the real moneymaker for Axon. The cameras are just the gateway drug.

There are lots of problems with this arrangement. For one, body camera footage is bought and paid for by taxpayers. It’s public record. Some states and municipalities restrict access to it under law enforcement exceptions to open-records laws, but it’s still public record. It isn’t difficult to see the downside of transferring an ownership stake in the footage to a private company.

But isn’t just video. Police agencies and local governments are using Evidence.com to store other evidence, too. Defense attorney Rick Horowitz recently put up a post about how in order to access discovery in a case, the district attorney told him to log on to the website. And in order to log on, Horowitz had to sign this user agreement:

You consent to Axon’s access and use of the Account Content in order to….improve Axon’s Products and Services. In addition, for content that is covered by intellectual property rights, like photos and videos (“IP Content”), you specifically give us the following permission: you grant us a non-exclusive, transferable, irrevocable, royalty-free, sub-licensable, worldwide license to use any IP Content that you post on or in connection with the Services (IP License).

Horowitz writes:

It doesn’t stop there, though. Suppose that someone (like me) complains about the illegality of this arrangement. So maybe the right people hear about this blog article, and decide “OMG! We did not realize California law was being abrogated this way!” The accounts that the District Attorney has with law enforcement’s nervous system—Axon—are shut down.

Second, this isn’t just any public record. We’re talking about evidence in criminal investigations. To have that evidence stored on servers owned by a private company creates some bad incentives. The company’s primary client isn’t the public; it’s the police agency. And it’s primary interest isn’t just outcomes in courtrooms; it’s keeping the client happy. For example, the company might win favor with police agencies — for example, allowing officers to take certain liberties with body camera video in a way that keeps the courts or opposing attorneys in the dark.

Sound paranoid? Read on.

Only Albuquerque police really know what happened early one April morning in 2014, when officer Jeremy Dear shot and killed 19-year-old Mary Hawkes, a suspected car thief, after a foot chase.

Dear’s body camera was off, he said, and the footage from body cameras of his fellow officers doesn’t give a clear picture of the teenager’s death. While Hawkes’ family accused police of a cover-up, their best evidence—the footage from the other body cameras—is either conspicuously absent or incomplete.

Now, one former police department records keeper is claiming the damaged or missing footage was deliberate, and alleging proof lies in the computer software—called Evidence.com—that the department uses to manage its body cameras.

“I have reviewed the lapel camera video [which two officers] provided to APD Forensic after the shooting of Mary Hawkes,” Reynaldo Chavez said in a court statement. “Based on my knowledge of Evidence.com, I can see that [one officer]’s lapel camera video has been altered by changing the gradient of the resolution on the video. I can see as much as the first twenty seconds of [the other officer’s] video has been deleted.” . . .

Evidence.com also allows users to edit and delete body camera footage. The tools can theoretically be used to highlight important frames of a video, or blur faces in order to protect identities. But Chavez, who had extensive training with the program, claims he saw the editing software put to more sinister use.

“I was able to see, via the Evidence.com audit trail, that people had in fact deleted and/or altered lapel camera videos,” he alleged in the affidavit, accusing detectives of training officers, particularly “those in the Forensics Unit and the Major Gangs unit how to edit video, meaning you could delete video and add images and blur video and/or corrupt video so they were either not usable or altered.”

Chavez claims that officers in these units were allegedly instructed not to file crime reports until after their body camera footage was viewed. If the footage presented the officers in a good light, Chavez said, they could release the film in the name of transparency. If the footage was problematic, they were allegedly encouraged to claim a faulty camera.

That sort of capability might explain why some police departments are paying Axon nearly 23 times the market rate for storage.

Horowitz’s client in the above passage happened to be a juvenile. And that raises yet another thorny legal issue: Records in juvenile cases are supposed to remain private. Horowitz writes:

And neither Evidence.com, nor Axon—not even in its prior incarnation as “Taser International,” for that matter—are listed in WIC 827 as lawfully able to receive, or disseminate, juvenile records. No corporation is.

As near as I can tell, there is no law, anywhere—but particularly in the laws of the State of California, which matter most for this particular situation—that allows any law enforcement agency, or the District Attorney, to release juvenile records to Axon.

Horowitz still hasn’t obtained discovery in his case. Why not?

Because I refused to sign the license agreement with Axon to obtain access to their—not the city, county, or city and county’s, but Axon’s—website.

Why did I do that? Because, among other things, The “Evidence.com Terms of Use” require me to promise certain things I will not promise.

And let’s not forget that Axon could change its terms of use at any time. It could, for example, release video only under the condition that it not be posted on social media or leaked to the media, even if doing either or both is permitted under a state’s open-records laws. Violating a terms-of-service agreement is effectively a federal felony. I’d imagine many states have computer fraud laws that are just as broadly written. Would a prosecutor ever bring such a charge? I think many would, especially if the video in question embarrasses local cops and prosecutors.

One can see why police agencies would leap at the offer Axon made last month. It’s also understandable that some local governments may not be able to manage by themselves the storage and infrastructure required to store and process body camera footage and may need to turn to the private sector. But this needs to be done in a smart way. Ideally, it should be handled by an agency or official outside of law enforcement, and the terms of these agreements should be negotiated with input from all relevant parties — not just police and prosecutors, but also civil liberties groups, transparency activists, the media and the defense bar — along with input from experts in areas such as privacy, evidence handling and video editing.