A personal note: I find it surprising and not a little disturbing that our general right to use our cameras freely in public places throughout America seems to be coming into question and sometimes under actual assault. I have been around long enough to remember the occasional story coming out of the bad, old totalitarian Soviet Union involving a Western tourist doing what we Americans took for granted, namely taking travel pictures wherever we go. From time to time, such tourists found themselves suddenly descended upon by police or, worse, Soviet security agents, for detention, questioning, and even arrest. Their cameras were seized and their film confiscated. The reason? Because they’d innocently pointed their cameras at something – maybe some unmarked, nondescript building, maybe even the sky if an airplane was flying past – that was deemed to be a sensitive matter of state security. So what if the tourist had no possible way of predicting that photographing there was not to be allowed? The operating rule seemed to be that that which is not expressly permitted is strictly prohibited. We took pride that it wasn’t like that in our own open society back in America.
There are signs now of pressures that are edging us in the direction of the Soviet way. 9/11 of course ratcheted up anxieties about security, but do those anxieties actually justify sacrificing basic freedoms? Moreover, legitimate security concerns – within a society that remains fundamentally free and open – are one thing. But to judge from reports and complaints that have been popping up frequently, some elements within law enforcement are increasingly aggressive in trying to stop people from taking photographs or videos from public places of things that are plainly out in the open. It has sometimes reached absurdities worthy of Kafka. In 2009, “The Colbert Report” ran a segment about a photographer at Penn Station in New York City who was stopped by Amtrak police, held, questioned, and ultimately arrested for taking a picture of an Amtrak train. He took the picture to enter in a contest that Amtrak was running for pictures that people took of Amtrak trains. http://www.colbertnation.com/the-colbert-report-videos/217341/february-02-2009/nailed--em—amtrak-photographer
This general issue – photographing and also videographing in public places – ought to have clear answers so that people with cameras and video equipment can be sure about what is allowed, and broadly speaking, in my opinion, the law should respect people’s freedom. In the vast majority of cases, police should leave people alone. But the issue has several facets, and the answers aren’t always clear. Here are some situations that seem to recur.
1. Photographing the exterior of a federal building from a public place. Washington, D.C., is of course full of federal buildings including office buildings that house various federal departments and agencies. No one to my knowledge has ever found any law or regulation that purports to restrict a photographer’s right to take pictures of the exteriors of these buildings from, for example, a public space across the street or a public sidewalk in front. Yet a number of times within recent months, building guards have emerged and purported to order photographers to stop on the ground – a false one – that it’s illegal to photograph any federal building or that it became illegal at 9/11. It is worth knowing that such guards typically are employed by private contractors and have no actual law enforcement authority including the authority to make an arrest, especially off the grounds of the property they are protecting. When asked, they will usually acknowledge that fact and admit that they have no power to enforce their “orders.” What they typically will do is threaten to summon actual police, often the Federal Protective Service, a police force under the Department of Homeland Security with responsibilities for protection of federal buildings. So photographers should know this: As a result of negotiations over this general issue with the New York Civil Liberties Union, FPS explicitly recognized people’s right to photograph federal buildings without police interference. An FPS “Information Bulletin” of August 2, 2010, HQ-IB-012-2020, instructs FPS officers: “Remember that the public has the right to photograph the exterior of federal facilities from publicly accessible spaces such as streets, sidewalks, parks, and plazas.” It is worth noting that the memo goes on to advise FPS officers that they may speak with a photographer (in a so-called Field Interview, or FI) if they deem it warranted – provided that the conversation is not coercive and does not involve detention of the photographer. This is consistent with the law, which – unsurprisingly – does generally allow police to engage in voluntary conversations with people on the street. But anything more – anything coercive – requires specific, objectively suspicious facts or probable cause to arrest. And in the course of a voluntary conversation, an officer may not demand to take a camera, or its memory card or film. The FPA memo can be found various places on the web including here - http://www.kcits.com/kcits/?LinkServID=F499A825-EEAC-C16E-C19591DEB69D9381 .
Of course, anyone exercising the right to photograph federal buildings should use common sense and expect a challenge – at the least – if attempting to photograph when there could be more specific security concerns, for example, at a military facility or nuclear station. Or when trying to photograph into Area 51.
2. Despite the experience of the photographer featured on “The Colbert Report,” people do have a general right to photograph buses, trains, and the like that are out in the public. Nonetheless, a photographer – who was a train buff with a professional interest in train systems – recently experienced harassment, bullying, and worse from Maryland Transit Authority police when he photographed a light rail train that ran on tracks on Baltimore city streets. He succeeded in recording a video of his encounter with the police, which he posted on YouTube – http://www.youtube.com/watch?v=_iMr76atjUA . His videoing of the encounter further provoked the police because of a Maryland wiretapping law that the police have begun using – or abusing – to deter and punish efforts to make objective recordings of police action in public places. The Maryland ACLU became involved, and as a result the head of MTA admitted that the police were in the wrong, affirmed the public’s right to photograph MTA trains, and offered to apologize personally to this photographer and another who received similar treatment by MTA police.
Police resistance to citizen recording of their conduct in Maryland also became an issue in an incident that arose when a plain-clothes Maryland State Trooper stopped a motorcyclist for speeding then approached him, with a gun drawn, in a menacing manner. The Trooper apparently did not notice that the motorcyclist had a video camera attached to his helmet and made a recording of the encounter, which he subsequently posted on YouTube - http://www.youtube.com/watch?v=BHjjF55M8JQ Now, the motorcyclist admitted he was speeding. And the trooper may or may not have been justified in drawing his weapon. But neither of those was the main issue. After the Maryland State Police learned of the video on YouTube, they obtained a warrant, raided his home, and seized computer and camera equipment. He was indicted for allegedly violating the same anti-wiretapping law that the MTA police had tried to invoke and was threatened with imprisonment for a decade or longer. Ultimately the trial judge dismissed charges because, on his interpretation of the statute, it applied only when there was a reasonable expectation that the conversation would be private, and a police officer could have no such expectation in an on-the-street encounter with a civilian during a traffic stop. The judge did not need to decide whether the motorcyclist had a constitutional right to make either an audio or visual recording of his encounter. It certainly can be argued that he did, but it is difficult to find cases that unequivocally recognize such a right. In addition, statutes in other states have been applied much differently. Consequently, the issue of people’s right to photograph or videograph the police in public remains murky. It is difficult to say with certainty what a photographer may safely and legally do, and the answer may depend on which state the photographer is in.
There is much more to be said about these general issues, and no doubt there will be further developments. I intend to blog further about them from time to time.
I also welcome contact from anyone who has had contentious encounters with building guards, the police, etc., when trying to take photographs or videos. I would like to know about people’s experiences. In a given instance, I may or may not be able to provide useful legal assistance or refer you to someone who can. My e-mail is wjmertens@mertenslaw.com, or you can contact me through my website at http://www.mertenslaw.com. You may also want to contact a local ACLU affiliate or the ACLU’s national office. The ACLU has been actively involved in these issues and has had success getting accurate guidance to police and building guards about their need to respect photographers’ rights.
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