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SPECIAL FEATURE > A Guide to Photographers’ Rights
Jay Stanley, Senior Policy Analyst, Speech, Privacy and Technology Project
Taking photographs and video of things that are plainly visible in public spaces is a constitutional right — and that includes the outside of federal buildings, as well as transportation facilities, and police and other government officials carrying out their duties.
However, there is a widespread, continuing pattern of law enforcement officers ordering people to stop taking photographs or video in public places, and harassing, detaining and arresting those who fail to comply. The ACLU, photographer’s groups, and others have been complaining about such incidents for years — and consistently winning in court. Yet, a continuing stream of incidents of illegal harassment of photographers and videographers makes it clear that the problem is not going away. In the spring of 2011 alone, the list of incidents included these cases:
- A woman in Rochester New York was unlawfully arrested in May 2011 for videotaping a traffic stop in front of her house — while standing in her own front yard.
- A man was unlawfully detained in March 2011 for taking photographs of Baltimore’s light rail train system — despite the fact that the Maryland Transit Administration had previously pledged to cease harassment of photographers, in response to complaintsby the ACLU of Maryland starting in 2006.
- That same month a photographer taking video of police using a taser on a participant in a New Orleans parade had his phone violently knocked out of his hands by a police officer. In response to this and other repeated incidents, the ACLU of Louisiana has filed an open records requestfor documents pertaining to the First Amendment training of New Orleans police officers.
- In February 2011, uniformed Secret Service officerson patrol in front of the White House detained a man for taking photographs of them in a public plaza swarming with tourists, journalists and cameras of all kinds. They demanded his identification, and told him, “Since you took a picture of us we’re going to take a picture of you for our records,” taking down his identification and photographing him. It is unclear what was done with that information.
- Two journalists were arrested at a June 2011 public meeting of the Washington, DC Taxi Commission. According to reports and a partial videoof the incident, one man was arrested for taking a still photograph of the meeting, while another was arrested for filming the arrest of the first journalist.
- A high school honors student in Newark, New Jersey was arrested in March 2011 for taking cell phone video of officers responding to an incident on a New Jersey Transit bus. We would link to the student’s video but cannot do so because officers also carried out an illegal search and seizure of her phone and erased the video she took. The ACLU of New Jersey filed suit in the case.
Examples of these kinds of abuses, which continue to be reported weekly, are chronicled on web pages such as Photography is Not a Crime. And for more information on the ways in which law enforcement is spying on Americans today, visit our report on “Spying on First Amendment Activity.”
A Crucial Check on Power
The right of citizens to record the police is a critical check and balance. It creates an independent record of what took place in a particular incident, free from accusations of bias, lying or faulty memory. It is no accident that some of the most high-profile cases of police misconduct have involved video and audio records.
Of course, photography is not necessarily “objective” and it is always possible in a particular case that there can be circumstances at work outside a photographic record. Overall, however, the incidents above make it abundantly clear that respect for the right to photograph and record is not well-established within the law enforcement profession.
Many of those involved in these incidents appear to be activists who know their rights and are willing to stand up for them. But not everyone is able to stand up to police officers when harassed; we don’t know how many other Americans comply with baseless orders to stop photographing or recording because they are uncertain of their rights or too afraid to stand up for them.
Photography as a Precursor to Terrorism
A big part of the problem here is “suspicious activity reporting” — the construction of a national system for the collection and distribution of information. Under this system (as we discuss on this page and in this report), law enforcement leaders at the federal, state and local level push officers on the ground to investigate and report a broad spectrum of legitimate, everyday activity as potentially “suspicious” — including photography. In fact, many such programs actually suggest that photography is a “precursor behavior” to terrorism, and direct the police to react accordingly. This notion has been dismissed as “nonsense” by security experts — but appears to be disturbingly robust.
A serious question for photographers and videographers who are harassed is whether they are being entered in government suspicious activity databases or watch lists, and whether and how such a listing might come back to haunt them. An investigation of Suspicious Activity Reports by NPR and the Center for Investigative Reporting, for example, found numerous individuals were reported to the FBI for taking photographs or video in the Mall of America.
A Problem From the Top
Another disturbing trend is police officers and prosecutors using wiretapping statutes in certain states (such as Florida, Illinois, Maryland, Massachusetts, New Jersey and Pennsylvania) to arrest and prosecute those who attempt to record police activities using videocameras that include audio. (Unlike photography and silent video, there is no general right to record audio; many state wiretap laws prohibit recording conversations if the parties have a reasonable expectation of privacy — which is never true for a police officer carrying out his or her duties in public.)
Word appears to have circulated within law enforcement circles somehow that using wiretapping statutes is a strategy for preventing public oversight, with some taking the concept to ridiculous extremes.
In contrast, it appears to be stubbornly difficult to spread word within those same circles of the fact that photography and videotaping in public places is a constitutional right. And earlier this year, following a lawsuit by the New York branch of the ACLU, DHS agreed to issued a directive to members of the Federal Protective Service making it clear that photographing federal buildings is permitted. Yet arrests by Federal Protective Service officers appear to be continuing. You would think that police chiefs and other supervisors could easily instruct and enforce an understanding of photographers’ rights among their officers. Still, for some reason, all too often that is not happening. In New Orleans, for example, in response to its public records request, the local ACLU found the police department’s policy which clearly instructs officers that people have the right to photograph. Yet officers there routinely violate the stated policy.
Your rights as a photographer:
- When in public spaces where you are lawfully present you have the right to photograph anything that is in plain view. That includes pictures of federal buildings, transportation facilities, and police. Such photography is a form of public oversight over the governmentand is important in a free society.
- When you are on private property, the property owner may set rules about the taking of photographs.If you disobey the property owner’s rules, they can order you off their property (and have you arrested for trespassing if you do not comply).
- Police officers may not generally confiscate or demand to view your photographs or video without a warrant. If you are arrested, the contents of your phone may be scrutinized by the police, although their constitutional power to do so remains unsettled. In addition, it is possible that courts may approve the seizure of a camera in some circumstances if police have a reasonable, good-faith belief that it contains evidence of a crime by someone other than the police themselves (it is unsettled whether they still need a warrant to view them).
- Police may not delete your photographs or video under any circumstances.
- Police officers may legitimately order citizens to cease activities that are truly interfering with legitimate law enforcement operations.Professional officers, however, realize that such operations are subject to public scrutiny, including by citizens photographing them.
- Note that the right to photograph does not give you a right to break any other laws. For example, if you are trespassing to take photographs, you may still be charged with trespass.
If you are stopped or detained for taking photographs:
- Always remain polite and never physically resist a police officer.
- If stopped for photography, the right question to ask is, “am I free to go?” If the officer says no, then you are being detained, something that under the law an officer cannot do without reasonable suspicion that you have or are about to commit a crime or are in the process of doing so. Until you ask to leave, your being stopped is considered voluntary under the law and is legal.
- If you are detained, politely ask what crime you are suspected of committing, and remind the officer that taking photographs is your right under the First Amendment and does not constitute reasonable suspicion of criminal activity.
Special considerations when videotaping:
With regards to videotaping, there is an important legal distinction between a visual photographic record (fully protected) and the audio portion of a videotape, which some states have tried to regulate under state wiretapping laws.
- Such laws are generally intended to accomplish the important privacy-protecting goal of prohibiting audio “bugging” of private conversations. However, in nearly all cases audio recording the police is legal.
- In states that allow recording with the consent of just one party to the conversation, you can tape your own interactions with officers without violating wiretap statutes (since you are one of the parties).
- In situations where you are an observer but not a part of the conversation, or in states where all parties to a conversation must consent to taping, the legality of taping will depend on whether the state’s prohibition on taping applies only when there is a reasonable expectation of privacy. But that is the case in nearly all states, and no state court has held that police officers performing their job in public have a reasonable expectation. The state of Illinois makes the recording illegal regardless of whether there is an expectation of privacy, but the ACLU of Illinois is challenging that statute in court as a violation of the First Amendment.
- The ACLU believes that laws that ban the taping of public officials’ public statements without their consent violate the First Amendment. A summary of state wiretapping laws can be found here.
Photography at the airport
Photography has also served as an important check on government power in the airline security context.
The Transportation Security Administration (TSA) acknowledges that photography is permitted in and around airline security checkpoints as long as you’re not interfering with the screening process. The TSA does ask that its security monitors not be photographed, though it is not clear whether they have any legal basis for such a restriction when the monitors are plainly viewable by the traveling public.
The TSA also warns that local or airport regulations may impose restrictions that the TSA does not. It is difficult to determine if any localities or airport authorities actually have such rules. If you are told you cannot take photographs in an airport you should ask what the legal authority for that rule is.
The ACLU does not believe that restrictions on photography in the public areas of publicly operated airports are constitutional.