Ep. 28: The Camera Cuts Both Ways · Footage, Retention, and Spoliation

Your security footage is your best witness — until it becomes the other side's. In "The Camera Cuts Both Ways," Don Carr and Jim Cords break down the two opposite dangers hiding in the same camera. Delete footage after a duty to preserve has attached, and routine auto-overwrite becomes spoliation — potentially an adverse inference where the jury is told to assume the missing evidence would have hurt you. Capture facial geometry without doing the legal homework, and biometric privacy laws like Illinois's BIPA can turn the recording itself into a per-violation claim. Too short, you've destroyed evidence; too long or captured wrong, you've created a privacy violation. The unifying lesson: retention isn't an IT setting — it's a legal decision, and someone who understands the stakes has to own it.

Loss. Liability. Law.

Transcript

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This is the City Safe Podcast, a conversation at the intersection of community safety, technology, and leadership, co-hosted by Don Carr and Jim Kortz. Together, we examine the critical issues facing cities today and the smarter tools that can help reduce crime and protect our communities. From instant communication systems to emerging technology, we break down what works, what doesn't, and what's next for urban safety. Because in today's world, keeping people safe requires more than good intentions. It requires innovation, data, and decisive action. Listen to the City Safe Podcast, available now on Spotify, Apple Podcasts, and YouTube Music. Subscribe today and join the mission to make cities safer for everyone. Welcome back to another episode of the City Safe Podcast. This is episode 28. The camera cuts both ways. Footage, retention, and spoliation. I'm your co-host, Don Carr. And I'm your co-host, Jim Kords. And your camera is the best witness you've got. It doesn't forget, it doesn't get scared, it doesn't change its story on the stand. When something happens in your store, that footage is the thing that proves what really went down. Every operator knows this. The camera is your friend. Now, here's the part nobody puts on the brochure. The same footage, the same camera, the same hard drive can become the single most damaging thing in your entire case. Not because of what it shows, but because of what you did with it. Kept it wrong, deleted it wrong, and the camera that was your best witness becomes the reason you lose. Yeah, and Don, this can happen two different ways. Right? So one, you delete the footage you were legally required to keep. And the deletion hurts you worse than whatever was on that tape. And two, you keep the footage you weren't supposed to capture the way you captured it. And the recording itself is the violation. So delete it wrong, you're in trouble. And keep it wrong, you're in trouble. So let's take the deletion side first, Jim, because it's the one that catches good operators completely off guard. So, Jim, the word spoliation, define it for us. Yeah, uh spoliation is the destruction or alteration of evidence that's relevant to litigation when you had a duty to preserve it. That's the key. It's not about deleting footage in general. I mean, everybody overwrites footage and storage isn't infinite, but the problem is deleting footage, you had the legal obligation to keep. Uh-huh. And here's the trap: most camera systems are set to overwrite on a cycle 30 days, 60 days, whatever. Old footage gets recorded over automatically. That's perfectly normal. That's just how the system runs. So, where does this go wrong, Jim? Um, well, it goes wrong the moment a duty to preserve kicks in. And that can happen well before a lawsuit is ever filed, right? Once you reasonably anticipate litigation, uh, maybe like it's an incident serious enough that you know a claim is likely, or you get a letter from the lawyer, or a formal preservation demand. Well, then you have a duty to preserve that relevant evidence. And at that moment, your routine auto-delete cycle stops being routine. If that incident footage gets overwritten on day 30 because nobody hit pause, then you didn't just lose evidence, you destroyed it after the duty attached. And the system did it automatically, nobody maliciously deleted anything. The machine just ran its cycle, right? Right. And here's the brutal part courts may not care that it was automatic. The duty to preserve includes a duty to suspend that routine destruction. There's a concept some of you have heard in the corporate context, right? The litigation hold. So when you anticipate litigation, you're supposed to put a hold on the relevant evidence. So you stop the auto overwrite, pull the clip, uh, and lock it down. Failing to do that, even passively, even just letting the system run can be spoliation. And the consequences are worse than just not having the footage. Yeah, much worse. And this is, I think, what most people don't grasp. So when relevant evidence is destroyed, a court can impose sanctions. In some cases, the judge instructs the jury that they may assume the missing evidence would have been unfavorable to you. It's called an adverse inference. Um, think about what that does. The footage might have completely exonerated you, but because you destroyed it, the jury is told to assume it would have hurt you. The absence of evidence becomes evidence against you. Well said, Jim. And I think that's an often overlooked and misunderstood, and not even educated with regard to that knowledge. So we appreciate that uh detailed explanation there. So that deletion can be worse than the worst thing the footage could have shown, because at least the footage was the truth. And the adverse inference lets a jury really just imagine the worst, right? Yeah, that's exactly it. You traded the actual facts for the jury's worst case imagination, and you did it by letting a hard drive do what it was set up to do. Now, let's flip the camera around. We've covered deleting too soon. The other edge is keeping or capturing something you weren't clear to. And this is where the safer conversation from episode 20 comes roaring back. Right. So back in episode 20, we got into facial recognition and the gap between what the technology can do and what's actually moved the needle. Here's the legal flip side of that capability. The moment your cameras aren't just recording video, but analyzing faces, so extracting facial geometry, running recognition, you may have walked into an entirely different body of law, biometric privacy. So, Jim, walk people through why a face is legally different from ordinary footage. A regular video recording of a public space is one thing, but a face print, the unique measured geometry of someone's face, is treated in a growing number of jurisdictions as biometric data. It's in the same family as a fingerprint or an iris scan. And several states have passed laws that regulate collecting it. The most well-known is Illinois' Biometric Privacy Act, often called BIPA, but it's not the only one, and more are coming. These laws can require things like notice and consent before you capture someone's biometric identifiers, limits on how long you keep them, and rules on how you store and protect them. Yeah, and the teeth on some of these laws are real, right, Jim? Oh, sure. Some of them allow individuals to sue directly with damages set per violation. And per violation in a retail setting where you might be scanning thousands of faces can scale into serious numbers very fast. The exposure isn't from a theft or an injury at all, it's from the act of capturing and keeping biometric data without doing the legal homework first. So here's the structural problem we want operators to see. The retention question isn't one question, it's two opposite questions at the same time. On the video evidence side, the danger is keeping it too short, deleting before the duty is discharged. On the biometric side, the danger can be keeping it too long or capturing it at all without consent. The same retention policy has to satisfy two requirements pulling in opposite directions. And most camera systems are configured by someone thinking about storage cost and image quality, not by someone thinking about a litigation hold on one side and a biometric privacy statute on the other side. The person who set your retention window probably wasn't a lawyer, and that window is a legal decision. And that's the line of this episode. Retention is not an IT setting, it's a legal decision wearing an IT costume, if you will. So let's talk about getting it right, Jim. How does an operator stop the camera from cutting against them? Well, first, on the spoliation side, have a defined litigation hold process and make sure your people know what triggers it. When a serious incident happens, the kind where a claim is foreseeable, somebody has to know to pull and preserve that footage immediately before the auto cycle eats it up. That's a five-minute action that can save a case. Lock the clip the day of the incident, not the day the lawsuit arrives 31 days later. And build that into a response doctrine we talked about earlier in the season. The defined response to a serious incident should include preserve the footage, make it a step, not a someday. Yeah, and second, on the biometric side, know what your cameras are actually doing. There's a real difference between recording video and analyzing biometrics. And you need to know which one you've deployed. If you're running facial recognition or any biometric analysis, um, that is a stop and get counsel moment. Understand the laws in every jurisdiction you operate in because they vary, and get the notice, consent, and retention rules right before you turn it on, not after the demand letter. So the same lesson as the detection episodes. One more time. Don't energize the capability before you've built the legal structure around it. The biometric system is another knowledge manufacturing machine. And this one manufactures a regulated kind of data. Right. So, and third, the unifying point, somebody who understands the legal stakes needs to own your retention policy. Not just how long, but what you capture, how you protect it, when you hold it, and when you purge it. Right now, in most operations, nobody owns that. It's a default setting from the installer. That's the gap. That's the gap indeed, Jim. So make it somebody's job because the camera's going to record either way. The only question is whether it's recording your defense or your liability. Yep. In closing, here's where it lands. Your footage is your best witness until you handle it wrong, and then it's the witness for the other side. Delete it after the duty to preserve attached, and you've got spoliation. Maybe an adverse inference where the jury assumes the worst. Capture biometric data without doing the legal work, and the recording itself becomes a violation. Right. And too short, you've destroyed evidence. Too long or captured wrong, and you've created a privacy claim. Same camera, same policy, two opposite legal edges. So retention is not an IT setting, it's a legal decision. And someone who understands the stakes has to own it. Yeah, because the camera doesn't take sides, you decide which way it cuts by how you handle what it captures. So next week, the duty changes hands. When you hire a guard company and something goes wrong, who actually pays? The retailer or the contractor? One indemnification clause decides it. I'm Don Carr. I'm Jim Kords. Stay well, stay aware. And stay city safe. That wraps up this episode of the City Safe Podcast. Thanks for joining us in the conversation about smarter strategies for safer cities. If you found today's discussion valuable, share it with your network and help us spread awareness about the tools and technology making a real impact. Be sure to subscribe on Spotify, Apple Podcasts, and YouTube Music so you never miss an episode. Until next time, stay informed, stay connected, and stay city safe.