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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:
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.
Know Your Rights
Everyone should be clear on what their rights are when engaging in photography in public spaces. The ACLU has prepared a "Know Your Rights" resource for photographers confronted by police. Learn more >>
