« Fan speech, once again | Main | Ratification of the Canada-China BIT »

Thursday, September 18, 2014

Cameras and unintended consequences

In the rush to video record everything so we always know for sure "what happened," it is important not to lose sight of the risk of unintended consequences. Two studies, not directly involving police and body cams, illustrate the point.

In The Atlantic, Derek Thompson argues that one major cause of the drop in offense and scoring over the past 5+ years is introduction in 2006 of video systems to review and evaluate umpire performance in calling balls and strikes. The intended effect was to teach umpires the "correct" strike zone and produce more accurate umpiring (indeed, several umpires were fired when video showed their ball/strike calls to be inadequate). But that accurate strike zone was a lower strike zone, with more pitches around the batter's knees now being called strikes, causing pitchers to learn to throw low in the strike zone. Low pitches are harder to hit, especially with power, so they produce more ground balls and more strikeouts (Thompson says the increase in strikeouts since 2008--called and swinging--is entirely on pitches lower in the zone). As a result, this more-accurate zone produces less scoring. The problem is that this lower-scoring game is not as popular nationally (based on game-of-the-week ratings and national fan recognition of star players) as the power-driven game of the late '90s and early '00s. And there is your unintended consequence--MLB used video to successfully increase accuracy, but accuracy fundamentally changed the game. And arguably made it less popular.

On the Harvard Business Review Blog, Ethan Bernstein (a professor in the B-school) argues that the increase in transparency that video brings may stifle worker creativity. He explains that "[k]nowing that their managers and others will closely evaluate and penalize any questionable recorded behavior, workers are likely to do only what is expected of them, slavishly adhering to even the most picayune protocols." In an article, Bernstein found such lack of creativity in assembly-line workers, who avoid potentially useful time-saving methods in favor of doing everything precisely by the book. And while supportive of body cams, Bernstein is concerned that they will have a similar effect on law enforcement.

With respect to public officials such as police (the people who will be wearing cameras), official immunity (especially qualified immunity) is driven by similar concerns for over-deterrence. Officials enjoy immunity so they can exercise their learned judgment and discretion vigorously; immunity also encourages creativity in job performance that may be beneficial. We do want officials to play it overly safe, avoiding any risk of liability by steering so far away from the constitutional line, where doing so may leave significant performance and enforcement gaps.* Perhaps we should at least be aware that, in equipping officers with cameras, we may be creating the same disincentives that immunity was designed to eliminate--officers will play always play it "safe" and steer clear of the line for fear that, even if not unconstitutional or unlawful, their behavior "looks bad" to the people who are going to see the video and reach conclusions based on nothing more than the video. Bernstein's solution is to promote video and transparency in the use of body cams, but to create some "zones of privacy," in which video is used for education and training rather than punishment, thereby providing officers the needed "breathing space."

    * I would argue that current qualified immunity strikes the wrong balance, too heavily weighting over-deterrence at the loss of accountability. But I recognize that both need to be taken into consideration.

The point is that police body cameras are as likely to produce unintended consequences as video in baseball or video monitoring of UPS drivers and assembly-line workers. Those unintended consequences must be considered and addressed by departments in establishing careful and clear rules and policies for camerause. And they should ring as another reason to treat cameras as one good idea, not as a complete solution.

Posted by Howard Wasserman on September 18, 2014 at 09:31 AM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink

Comments

"Of course I don't believe fewer crimes by police officers would be bad. But we shouldn't make the mistake of assuming that it is bilateral (crime/not crime) or unambiguous. A lot of lawful conduct will look "bad" on video, or at least ambiguous enough that it potentially over-deters."

Posted by: Howard Wasserman

And a lot of bad stuff will be prevented, and a lot of officers who need to be kicked off the force will be kicked off.

You are asserting 'over-deterrence'; IMHO the status quo is clearly vast under deterrance (police officers shooting unarmed suspects and not being charged is far closer to the norm).

Posted by: Barry | Sep 22, 2014 9:35:02 AM

Of course I don't believe fewer crimes by police officers would be bad. But we shouldn't make the mistake of assuming that it is bilateral (crime/not crime) or unambiguous. A lot of lawful conduct will look "bad" on video, or at least ambiguous enough that it potentially over-deters.

Posted by: Howard Wasserman | Sep 18, 2014 3:52:13 PM

IMHO, these examples are very, very bad, unless (for example) you think that fewer police officers committing crimes against the public will 'change the game' in a bad way.

Posted by: Barry | Sep 18, 2014 2:56:49 PM

The only takeaway is that there are unintended consequences to relying on video to provide "the truth" or "accuracy." Sometimes those consequences are good (I like low-scoring baseball games and cops who steer clear of the constitutional line), sometimes not (lots of people disagree with me on both counts).

Posted by: Howard Wasserman | Sep 18, 2014 10:34:32 AM

I'm not sure of the takeaway from the baseball example, though it is interesting. I've always found it odd that the strike zone went down to the knees. Perhaps the lesson from the video is that we should change the strike zone because the rule is untenable, and we wouldn't know that without the video.

Posted by: Michael Risch | Sep 18, 2014 10:20:03 AM

Post a comment