Photographers And The Law

- - Working

It seems to be an open secret that terrorists use photography to plan an attack. I’m simply basing this on the rising number of incidents where photographers who are following the letter of the law are harassed by security and/or police for photographing our transportation infrastructure. Miami journalist Carlos Miller does a good job documenting the incidents over on his blog Photography is Not a Crime and it seems like the national media is starting to take notice as well with stories in the Washington Post, NY Times and on the NY Times Lens Blog.

Over on the Black Star Rising blog, David Weintraub has an excellent post explaining the rights of photographers:

The First Amendment gives photographers and videographers almost unlimited freedom to make images in public places. This includes every place from Wall Street to Main Street — streets, plazas, parks, bridges, shopping malls, industrial parks, city-owned airports, and transit systems.

OK, public places are fair game, but what about people? As long as they are in a public place, you can photograph or video to your heart’s content. This includes politicians, celebrities, police officers, and ordinary people.

Well worth the read and considering your chances of running into someone who doesn’t understand the first amendment it’s worth becoming an expert on the subject to help educate them and stop the misinformation going around.

There Are 33 Comments On This Article.

  1. “It seems to be an open secret that terrorists use photography to plan an attack”

    That’s the first time I’ve seen it acknowledged in the photo press that terrorists may use photography, or photography as a ruse, to facilitate their attacks. And it makes sense to me, it is a perfect guise to use.

    So why not turn some of the photographer’s vile condescension towards the terrorists? They’re the root of the problem, not some poorly educated security guard. I hate going through the hassles too but it wasn’t the cops who put us in this situation. And while some are stupid and nonsensical, can you really expect perfection when the greater goal is to prevent an attack?

    • @F,
      from the NYTimes story:

      Since 9/11, a number of government bodies have sought to limit photography in railroad stations and other public buildings. One rationale is that pictures would help people planning acts of mayhem. It has been a largely futile effort. On a practical level, decent cameras now come in every size and shape, and controlling how people use them would require legions of police officers. Moreover, taking photographs and displaying them is speech protected by the First Amendment, no less than taking notes and writing them up.

      • “It has been a largely futile effort.”

        Isn’t that conjecture rather than objective reporting from the journalist? Since there have been few successful attacks, perhaps it has been futile for the terrorists as well?

        • Stuart Mackenzie

          @F,

          In the land of the free, should you not be innocent until proven guilty, rather than assumed guilty and required to prove your benign intents?

          What next. Imforming on your neighbour because you saw them buying fertilizer at a garden centre and that could be used as part of a cocktail to make a bomb?

          When we allow terrorists to tacitly dictate what freedoms we have by the action of our law enforcers then they have won, and we might as well all pack up and go home.

          • Well… they do tag large fertilizer purchases, especially by people who don’t look like locals. What’s the matter with that?

            Likewise shortly after 9-11 the authorities detained a Middle-Eastern college kid who was photographing the NYC water supply in the Catskills. While he was innocent, and perhaps the cops were over-zealous, aren’t you glad they troubled themselves to check him out?

            And if I were scoping out a target, one of the things I’d want to know is how responsive the security team was, so taking pictures would make a great test. How do you know what someone’s intent is?

            There were plenty of bullying, ridiculous cops and guards well before 9-11. But in the current climate, you’re asking all cops to universally ignore common sense to protect your semblance of rights. Declaring that all photographers are always innocent and shouldn’t ever be questioned is stupid, yet that seems to be what I read from these various photographer rights rants.

            While the British laws seem quite severe in that Nanny State, what I notice is that the US laws regarding rights to photography haven’t changed, but the local reaction by individual officers is inconsistent and sporadic – one time you’ll get stopped, other times you get a pass. In ~most~ cases that is probably good police work and they’re using good judgement in accessing the situation and tailoring appropriate responses that weigh security versus freedom/privacy. But what we read about are the exceptions.

            I rather have the cops on the ground make decisions based on the situation at hand than passing some universal edict declaring photographers off-limits. Then educate the cops better.

            • Stuart Mackenzie

              @F, It is not that all photographers are always innocent, but the vast majority are. I know you will say that we only have to catch one terrorist photographer to make it worthwhile. I kind of agree. But the unpredictability of law enforcement with respect this matter means that those innocent photographers feel that they cannot practice their hobby/profession without fear of getting detained by law enforcers.

              I realise that this is fundamentally an entrenched argument – neither of us are going to change our mind on the matter but as a parting shot.

              I am in the UK and I agree we have an awful nanny state with regards a lot of things here. But in a public place I can take a picture of anything I want to. There is no law to stop me, and yet the Police and private security guards have used the spectre of terrorism to justify their stop and search of people going about practising their hobby.

              I am a photographer. Not a terrorist.

              • Well I am sure you are quite innocent, as are 99.999% of the public. But rather than creating myriad statues and legislating every interaction, wouldn’t it make more sense to allow legitimate and well-trained security officers to respond to situations “organically”? In real life we often have hunches and intuition and wouldn’t it make sense to allow those to be acted upon?

                My objection to the whole “I’m a photographer not a terrorist” thing is that they seem to totally discount the possibility of any terrorist using photography. It seems rather disingenuous when a lot of photographers will turn around and sell themselves based on the “value of photography” and how useful it is in analyzing situations.

                • Herman Stehouwer

                  @F, Maybe. But somehow I doubt a terrorist (which is already an extremely, extremely rare thing!) would use a big camera that draws attention.

                  A camera phone, or a small digicam seems much more likely and it doesn’t get you bothered by the rather innefective security.

                  • Hmm… maybe we should be suspicious when a hoard of bearded young Saudi males take a John Sexton large-format workshop and only study exposure and not development?

                • @F, terrorists don’t need to take photos, all they need to do is go on Flickr and other photo sharing sites and download what they want/need.

            • @F,

              (A lot here seems to be cleared up but I still need to repeat.)

              I agree with you partially. The issue I’m having with your argument is your use of ‘well-trained, legitimate officers, dealing with things “organically”‘. What’s being noted is that this is rarely the case. It’s really frustrating reminding the NYPD of your rights… for you and _especially_ for them. Cops here don’t respond well being told they don’t know what they hell they’re talking about. That usually leads to trouble in the form of detainment. Find me one law enforcement officer who knows my rights better than me and I’ll entrust them to deal with things knowledgeably… Leave the ‘organic’ detective work to MacGruber.

              I’m not sure if you’re inaccurate in your use of your words, or if this is really the case… but you’re asking if detaining (not questioning, but by definition, holding in custody) a middle eastern college kid for taking pictures comforts me? Who the hell would answer ‘yes’ to that? The fact that he ‘turned out innocent’ doesn’t change the fact that he was wrongfully arrested for having a camera in the wrong place, even though it was perfectly legal. You don’t find that incredibly frustrating? A middle eastern kid with a camera is a middle eastern kid in a van. You don’t search and detain the man in the van without reasonable premise. What’s the difference? There might be a bomb in that van… 99.99% of the time there won’t. But there could be. Essentially, pull over everyone you say.

              You’re riding a scary line. If everybody shared this perspective we’d be on our way to Orwell’s 1984.

              Where I see your point is where I understand New Yorks overall paranoia. Best case scenario: Create checkpoints, MTA style. While I think that whole process is a crock of shit / waste of money, it’ll give the NYPD piece of mind that they’re doing something to stop terrorism on the ground floor. Make bag checks a possibility for those crossing. Don’t want a bag check? Don’t get to cross the bridge. You can opt out and go your merry way, unquestioned and unchecked… again same as MTA. It sucks because we’re not talking about private property here, but we need to find a middle ground that doesn’t involve aimlessly arresting (mostly middle eastern) people.

  2. “It seems to be an open secret that terrorists use photography to plan an attack. ”

    I think just because security guards and cops think photography is used by terrorists doesn’t mean that it is. It wouldn’t make sense to go do risky on site recon when almost everything is on Google street view. I remember reading an article that said there has been no evidence photography was used and any terror attack. (9/11, 7/11, Mumbai, Madrid train bombings, the failed Times Square attack, etc)

  3. Why would a terrorist need to have photos to plan an attack in a public place anyway? It defies common sense. The way these people work they live for a time where they strike anyway. You don’t need a camera to live or visit a location.

    Notice too that the real ugly incidents lately are not the ones where photographers are suspected terrorists shooting a bridge etc but rather when we point our cameras at cops who may or may not be abusing their powers.

  4. Know your rights and stand by them. Recently, i was photographing a security guard, in a public space. He came over to me, told me he did’nt want his picture taken and demanded i erase all my pictures of him. I said no, i’m not going to, I know my rights! This is public domain, and he has no right to insist that. This went on 3 or 4 minutes, eventually he went away, after i told him he ha the right to avoid showing his face ( hand in front of, turning away), but in a public place he has no right to tell me what i can and cannot photograph, decide why i photograph something, or in effect act as my photo editor. People will try to intimidate you and strong arm you with the threat of arrest, but in reality, know your rights and stand by them. Public domain you do not need permission to photograph ( now, how it’s used another matter….. commercial etc.). But to take the photograph, no problem.

  5. It makes sense to me that, if a terrorist is gathering intelligence through photography, he’s not going to make himself obvious with a lot of professional equipment.

    We live in a state of fear, and that’s not the freedom that we claim to love so dearly here in the U.S. If a terrorist wants to map a location, all he/she has to do is show up with a notepad and draw a map.

  6. @F,
    “well-trained security officers ”.
    Well there’s your problem…

    Next time you’re having a conversation with a security guard, politely ask him what his previous job was or where he went to school. You will not find Rhodes Scholars. Remember, being a security guard was the best job they could find.

  7. Jock Bradley

    I had an incident with mall security in Seattle this past spring while my son was taking pictures for a high school photography class. My son and I were standing on top of parking garage that the mall owned. He was the only one taking pictures and the only usage was for his homework assignment. We were told by the mall police that he couldn’t take pictures of the mall or of a banner for a cell phone carrier because it was a copyright infringement. I did my best to reason with the officer and explain to him that my 15 year old son would not be violating any sort of copyright by doing his homework. This lead to the officer telling us that we needed to leave the parking garage and stop taking pictures of the mall and surrounding property or we would be arrested for tresspassing. Me not being willing to have my son go to juvenile detention for art’s sake, we beat a hasty retreat as the local police showed up to arrest us.

    I was rather bothered by the conduct of the mall security and decided to ask a friend of mine who is a lawyer by trade and a photographer by desire. The following is her response to my query:

    “I just gave a lecture on this so I’m very familiar with it-as you know I am a lawyer: The First Amendment’s right to free speech/expression is a right to be free from governmental intrusion. Private property owners have a right to restrict or even prohibit free speech/expression on their property. There is one exception –with certain narrow exceptions in the State of California they can’t because the US Supreme Court has ruled that California’s Constitution grants its citizens greater rights than the federal constitution. Other states–nope. This situation arises in malls quite frequently –which normally are privately owned. A mall cop, security guard, management, etc. may prevent you from taking photographs on their property. You may, however, take photographs of the mall or anything in it from off their property. If on mall property and asked to stop you must or you may be held to be disturbing the peace. If you are asked to leave and don’t, you could be arrested for trespassing. They may also ask for your film or to erase your CF card as a condition of remaining on the property. However, they cannot take your film, CF card, or gear–that would be conversion. Nor can they detain you unless they have made a citizen’s arrest. They can kick you out. For some reason, mall cops often tell people it’s a copyright issue, they’re idiots, it’s not.”

    • @Jock Bradley,

      Jock, very good post. I’m always amazed at how ill informed photographers are on mall,hospital or care unit ownership and their perseved perception on the right to photograph. As noted up and down the content of this subject….do your homework and learn your rights and those of the people you photograph.

  8. The masses do not understand terrorism. Thus the result of 9-11 is there are people in jobs who are not sufficiently trained. It doesn’t take much other than some time. I think we all remember some of the events where TSA failed due to a lack of training. Well police and security offices are in the same boat. They have no idea how to identify potential terrorist other than by appearance not actions. The see someone with a big camera and think terrorist because they use big cameras. Not! Terrorist use every method possible to not draw suspicion to themselves. they are in the open but unsuspecting.

    It is difficult in the US and UK to seperate who is who because of the diversity in the cultural backgrounds of the population. It is easier to seperate yourself when you are in Kuwait or Malaysia. I have found it easier to provide an ID and business card to prevent any hassels. When you run into the overzealous security guard and he is unknowledgable hand him a copy of the photographers rights. Educate him, because he can become your allie sometime in the future.

    I walk into banks, grocery stores, malls, train stations, stadiums, etc and have only been hassled once by a security guard for taking a picture of a homeless person in front of a grocery store. They though I was a corporate spy LOL.

  9. This is important to know. A great decision to have and to know your rights as a photographer. I have been just recently told no photos in the financial district of NYC. Also, I was in the U.K. and taking a photo of some kids. My Yorkshire friend said that taking photos of children (that are not your own) in the U.K. is against the law. So, I guess it is important to know your rights in any country.

  10. A couple of years back, I was shooting a street scene for a commercial project and a guard from the building to my back came out and informed me that I could not take pictures.

    I told him we were shooting a commercial project, he could clearly see the art director plus assistants.

    Security Guard made the mistake of getting in front of the camera and tried to bully me. I told him to move and that he had no authority whatsoever.

    His second mistake of the day was to put his hands on my shoulder and repeat to me that I was not allowed to photograph the street.

    My very sharp assistant saw what was coming and made a call to 911. The security guard had much to explain and had a nice ride down to the county courthouse. He could not keep his mouth shut, was unprofessional and had wanna-be cop written all over his face. The local Police Officers were angry that this guy thought he had the right to stop a legitimate photo shoot.

  11. Jeff Greenberg

    Reality: what matters more than how great someone explains the rights of photographers is how great the costs someone charges to defend them.

  12. It seems to be that terrorists (and tourists) use Google Street View to plan an attack (or a vacation).

    Seriously, is it open season on photographers in the US? Perhaps we should follow the recent examples of photographers in the UK.

  13. A few years ago, I was walking around with my camera on a Monday morning and shot some pictures of the 1933 Valley Municipal Building in Van Nuys, CA.

    A woman came running out of the building, with a security guard and pointed at me. “He’s got a camera! He’s shooting pictures!”

    I walked away and back towards my home.

    The woman got into her car and tailed me. She rolled down her window and demanded to know “what are you doing?”

    She screamed that “there are people who want to harm our country”. I told her, in so many words, to f-off. She drove away.

    If a camera is a weapon of terror, then so is a mobile phone. I think any stranger who can walk up to a photographer, who is shooting in a public place, and arrogantly demand to know “what are you doing?” should also walk up to anyone talking on the phone and ask the same questions.

  14. Once, shooting for fun in a public square, I snapped a picture of a man pushing a stroller. Perhaps feeling defensive with his small child, he shouted at me in an angry tone, “Ask first!” I was under the impression that it was my right to take pictures of people in public places and felt that I was behaving in a fairly discreet / respectful manner. Still, it seems worth remembering that, beyond any legal issues, there remain the issues of appropriate or acceptable behavior in a social sense. While I was within my rights, so was the man within his rights to tell me that I’d upset him. It made me think twice about how I would proceed in the future.

  15. “OK, public places are fair game, but what about people? As long as they are in a public place, you can photograph or video to your heart’s content. This includes politicians, celebrities, police officers, and ordinary people.”

    this is misleading in that i think people are going to take this as meaning one can shoot and display photos of anyone.. you can shoot people but you cant just publish those images to your hearts content. but yes you can shoot.