Saturday, September 10, 2011

Taking photos in public: Can you get in trouble?

The ACLU has a great page that explains what's allowed and what's not when it comes to taking photos and video in public places. It's an issue that's very important to anyone living in a free and open society, but is especially important now, considering nearly every mobile phone sold today has a digital camera buit in, and most of them can also take video (even my low-tech Nokia handset that came for free with my AT&T prepaid plan can shoot video, albeit at 128x96). The result is anyone with such a phone can photography anything or video any event that they happen to witness, whether it's mundane or extraordinary. Not everyone appreciates being photographed/videoed, however, and there is always a worry about getting in some sort of trouble for taking photographs. What are our rights?

The ACLU page lays it out very clearly. In terms of photography:
  • 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 government and 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.
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.
The underlined emphasis is mine. I was not aware of these issues until I read this page, and the phrase "Am I free to go?" is one worth remembering. Note also that not all officials (including police) understand the law when it comes to taking pictures in public places.

It's also worth remembering that public spaces include streets, parks, and many other exterior spaces. Further, these rights don't only apply to photographing police, but also anyone who happens to be in them. While someone may demand that you "put that camera down" or "stop taking pictures of me" and you are in a public space, you are legally within your rights to keep shooting -- although the polite thing to do may be different.

When it comes to shooting video, however, wiretapping laws have clouded the picture, and have been abused by police in Massachusetts and other states. Stories of people videoing an arrest on the street or even from their own property only to be arrested themselves have become disturbingly commonplace, and has a chilling effect on public behavior. There are signs the courts are coming around, but in the meantime reading the ACLU's take is helpful for understanding what's at stake:

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.
As for the question of whether it's OK to photograph or video the TSA, the answer is yes you can, as long as you are not interfering with the screening process or taking photos of their baggage scanner screens. Read the ACLU page for more information.

You may also be interested in some other blogging I've done, including:
Image: Protests in San Francisco, August 2011. Photo by flickr user tedeytan, posting here under the terms of the creative commons license used: Attribution-ShareAlike 2.0 Generic (CC BY-SA 2.0). 

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