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Upholding the Law: Photography Rights are Routinely Ignored

Wednesday, February 16th, 2011

“Excuse me, ma’am, no photos. This is a federal building.”

Security guards, as a rule I think, instinctually distrust cameras and photographers. And so they regularly shoo or threaten photographers and videographers away from their beat. Sometimes if they are law enforcement, they make arrests. Many back down when a photographer knows or at least acts like she knows her rights; many do not. Guards at federal buildings, specifically, have a history of being less impressed with pretty speeches than the average rent-a-cop. The heightened concern of “terrorism” has only bolstered a general willingness to stop photographers, demand identification, request or force memory cards to be wiped, insist on reviewing the photos, or even confiscate equipment and property.

But, as we all may ache a little about civil liberties seemingly disappearing left and right over the last decade, a small victory on the photo front happened recently.

To celebrate, the New York Times’ photography blog, Lens, published a stunningly beautiful image on January 27, 2011. A clip of the Federal Protective Service (FPS) Information Bulletin from August 2, 2010, slightly redacted, graced the site. The FPS is under the Department of Homeland Security (DHS), and in this bulletin they made clear “the public’s right to photograph the exterior of federal facilities” from “publicly accessible spaces such as streets, sidewalks, parks and plazas.”

Even more exciting, it is now DHS policy that that in public spaces, “Officers should not seize the camera or its contents, and must be cautious not to give such ‘orders’ to a photographer to erase the contents of a camera.”

This victory restores rights that never should have been endangered. It is perfectly legal to take photographs in non-military public space, including the exterior of public buildings. The laws and the courts uphold this. And yet, ask any intrepid photographer or videographer and they can likely tell you a story, or two or twelve, of improper harassment at the hands of security guards and police.

And so, when FPS arrested and seized the memory card of Antonio Musumeci on November 9, 2009, as he videotaped a demonstrator in front of the Daniel Patrick Moynihan United States Courthouse in New York City, the New York Civil Liberties Union (N.Y.C.L.U.) was ready to step in on Mr. Musumeci’s behalf. They slapped DHS with a lawsuit. The videographer had been stopped in front of this particular federal courthouse two other times, once receiving a ticket for his trouble.

DHS did not have legal ground to stand on and so settled the case on October 6, 2010, though the recent instruction to their personnel in response to the case was written in August and only surfaced publicly this January. The court-ordered settlement was careful to retain federal officers’ right to question photographers and ask for the “voluntary provision of information”. Still, DHS was required to return Mr. Musumeci’s property, provide money for damages and legal fees, and write this policy for their personnel.

Serious photographers, professionals, and hobbyists alike, are already starting to carry this three-page DHS directive with them along with an assortment of other documentation about their rights that are now required equipment for any reasonable camera bag, including the well-loved one-page “The Photographer’s Right” written by Oregon attorney Bert Krages, and copies of the First and Fourth Amendments. It is often a politician’s game to carry a pocket Bill of Rights, and yet photographers have learned that they often must argue their rights on the spot with direct access to the written text. It may also serve as a talisman to strengthen the nerves of everyday people preparing to stare down authority figures whose dictates they would be able to abide if the demands were anything other than abusive.

Photographers armed with their rights are now everywhere and in every community. As smartphones make cameras ever more omnipresent, more people catch the photobug. There is an active group in the D.C. area of those who have more than once been harassed, including nineteen year-old Jerome Vorus. Mr. Vorus has been tackled by police, but continues to press his rights (and ultimately win) in such unlikely places as the TSA security check-point at National Airport. Luckily the group has found a willing advocate in D.C. Congressional Delegate Eleanor Holmes Norton who often steps in when private companies or public-private partnerships have allowed harassment to persist after initial, reported incidents. Local photographers have been harassed all over town, but high profile, repeated incidents have taken place over the past decade at Union Station, downtown Silver Spring, Amtrak Stations, and most notably, on Metro.

Metro has dramatically improved their staff knowledge that, per WMATA policy, photos are allowed anywhere in the Metro system other than Pentagon Stationthere the military actively prohibits photosbut it is sadly still not uncommon to hear, “Excuse me, ma’am, no photos. Metro policy does not allow photography on Metro.”