Effective September 5, 2017, Act 22 of 2017 has finally closed the loophole in Pennsylvania’s Wiretap Act that inexplicably criminalized aspects of police use of body cameras. Act 22 was the culmination of a two-year lobbying effort by the Pennsylvania State Lodge of the Fraternal Order of Police and other stakeholders, and it represents a major win for police officers and their unions. Act 22 also provides an opportunity for local police unions to be proactive in bargaining body-camera policies that protect the rights of police officers who are required to wear this new equipment.
Before Act 22, the use of body cameras by local police departments exposed officers to running afoul of the Wiretap Act, which barred recording in private residences without consent of the owner. Act 22 created the risk that officers could be charged with a felony if they mistakenly activated or failed to deactivate their cameras inside a residence. Due to this risk, and a variety of other concerns, most departments refused to roll out body cameras.
Act 22 of 2017 eliminated the above risk to police officers by excluding police body camera recordings altogether from the definition of “oral communication” under the Wiretap Act. Under Act 22, police body-cam recordings are excluded from Wiretap Act coverage so long as they are captured by an approved recording device, and the statements are made in the presence of a readily-identifiable police officer on official duty. In other words, a police officer equipped with a body camera. Police officers meeting this standard are no longer required to announce that they are recording, or switch off their recording devices when they enter a residence, to avoid violating the Wiretap Act. Of course, officers are still subject to constitutional limits governing entrance into a residence without a warrant or probable cause.
In addition to closing the Wiretap Act loophole, Act 22 also requires local police departments wishing to utilize body-cams to promulgate written policies setting standards for officer training, maintenance of cameras and recordings, access to recordings, retention of records and other issues. The Pennsylvania Commission on Crime and Delinquency has been tasked with developing a “model” policy for local departments to consider.
And this is where Act 111 is triggered.
Under Act 111, public employers are subject to an obligation to bargain with their police officers over matters affecting working conditions, including the mandatory use of body cameras. As the use of body cameras becomes more prevalent, we expect the law to develop over the limits on this obligation to bargain. For instance, employers may assert that they have a managerial right to mandate the use of body cameras, and that police officers may not force them to bargain over this “decision” in the first place. Even then, however, the employer may still be required to bargain over the impact of the use of body cameras on its officers. This “impact” bargaining could address issues such as the discipline of officers related to their use of body-cameras, the use of body-cam recordings in the disciplinary process itself, officer access to recordings for reporting, and departmental access to recordings for “performance monitoring” or training purposes, among other issues.
The bottom line on Act 22 is that the “private residence” loophole has been closed, body cameras are likely coming to your local police department sometime soon, and Pennsylvania law gives police officers a say on how those cameras will impact their employment. So now is the time to consult legal counsel and prepare to negotiate a fair body-camera policy.