Photography and the Law

Bruce Schneier, an internationally renowned security expert, made the following comments about the threats we face from photography:

"What is it with photographers these days? Are they really all terrorists, or does everyone just think they are?

Since 9/11, there has been an increasing war on photography. Photographers have been harassed, questioned, detained, arrested or worse, and declared to be unwelcome. We’ve been repeatedly told to watch out for photographers, especially suspicious ones. Clearly any terrorist is going to first photograph his target, so vigilance is required.

Except that it’s nonsense. The 9/11 terrorists didn’t photograph anything. Nor did the London transport bombers, the Madrid subway bombers, or the liquid bombers arrested in 2006. Timothy McVeigh didn’t photograph the Oklahoma City Federal Building. The Unabomber didn’t photograph anything, neither did the shoe-bomber Richard Reid. Photographs aren’t being found amongst the papers of Palestinian suicide bombers. The IRA wasn’t known for its photography. Even those manufactured terrorist plots that the US Government likes to talk about - the Ft. Dix terrorists, the JFK airport bombers, the Miami 7, the Lakawanna 6 - no photography.

Given that real terrorists, and even wannabe terrorists, don’t seem to photograph anything, why is it such pervasive conventional wisdom that terrorists photograph their targets? Why are out fears so great that we have no choice but to be suspicious of any photographer?

Because it's a movie-plot threat.

A movie-plot threat is a specific threat, vivid in our minds like the plot of a movie. You remember them from the months after the 9/11 attacks: anthrax spread from crop dusters, a contaminated milk supply, terrorist scuba divers armed with almanacs. Our imaginations run wild with detailed and specific threats, from the news, and from actual movies and television shows. These movie plots resonate in our minds and in the minds of others we talk to. And many of us get scared.

Terrorists taking pictures is a quintessential detail in any good movie. Of course, it makes sense that terrorists will take pictures of their targets. They have to do reconnaissance, don't they? We need 45 minutes of television action before the actual terrorist attack -- 90 minutes if it's a movie -- and a photography scene is just perfect. It's our movie-plot terrorists that are photographers, even if the real-world ones are not." (Bruce Schneier, "Carry On" pp. 43-44)

If we can’t identify a terrorist threat associated with photography, is there some other limitation that should be placed on an individual’s ability to photograph that which is visible from a public venue?

A question that is frequently asked is whether it is illegal to photograph the police.

According to the United States Department of Justice (DOJ) (2013), "Statement of Interest of the United States, Garcia v. Montgomery County, Maryland", the First Amendment protects the rights of individuals who peacefully photograph police officers in the performance of their duties on a public street.  This First Amendment protection extends to the public at large and is not limited to the news media or others performing some type of official or job related function.  The DOJ also stated that the Fourth Amendment protected individuals from having their cameras or film seized by police officers without first obtaining a warrant or other due process.  The DOJ also expressed concern over secondary charges being titled against individuals who photograph the police, saying:

The United States is concerned that discretionary charges, such as disorderly conduct, loitering, disturbing the peace, and resisting arrest, are all too easily used to curtail expressive conduct or retaliate against individuals for exercising their First Amendment rights.  The United States believes that courts should view such charges skeptically to ensure that individuals’ First Amendment rights are protected. Core First Amendment conduct, such as recording a police officer performing duties on a public street, cannot be the sole basis for such charges.  
 

The DOJ makes it very clear that they believe that photographing police in a public venue is a constitutionally protected right.

What about photographing Federal Buildings?

The Department of Homeland Security’s Federal Protective Service (FPS) Threat Management Division (2010) stated in a bulletin to it personnel, as part of an agreement settling a lawsuit (Antonio Musumeci v. United States Department of Homeland Security, et.al. 10 Civ 3370 (RJH)) filed by the New York Civil Liberties Union:

For properties under the protective jurisdiction of FPS, there are currently no general security regulations prohibiting exterior photography of any federally owned or leased building... Furthermore, it is important to understand that this regulation [41 CFR, Section 102-74.420] does not prohibit photography by individuals of the exterior of federally owned or leased facilities from publically accessible spaces such as streets, sidewalks, parks and plazas... Therefore, absent reasonable suspicion or probable cause, law enforcement and security personnel must allow individuals to photograph the exterior of federally owned or leased facilities from publicly accessible spaces. 

And state laws say much the same thing...

The New York City Police Department (NYPD) (2009) in its operations order Investigation of Individuals Engaged in Suspicious Photography and Video Surveillance stated:

Members of the service are reminded that photography and the videotaping of public places, buildings, and structures are common activities within New York City... practically all such photography will have no connection to terrorism or unlawful conduct... Members of the service may not demand to view photographs taken by a person absent consent or exigent circumstances... In addition, a person who has taken pictures should not be directed to delete or destroy images stored within the device.

The NYPD has one of the most advanced counterterrorism departments in the world, and recognizes that "practically all photography will have no connection to terrorism or unlawful conduct".

   

What about photography on military installations?

While each military service may have different rules, and military Commanders may set specific regulations for photography on their facilities, the Army Public Affairs regulation is instructive. The bottom line for military facilities is that in public areas you need the permission of the Commander, and photography in restricted areas is strictly prohibited.

Army Regulation 360-1 "The Army Public Affairs Program" (25 May 2011)

5-33. Photographing military installations or equipment

a. Public access to Army installations is determined by local commands. Photographing historical buildings or areas of public interest for private use is generally permitted but also subject to approval by the local command.

b. Ground or aerial photographs, sketches, or graphic representations of classified military equipment or installations designated as restricted areas is punishable by law (18 USC 795). Reproducing, publishing, or selling this type of material is also punishable by law unless the photograph, sketch, or graphic representation indicates it has been reviewed and cleared for release by proper authority.

The American Civil Liberties Union (ACLU) has stated "Taking photographs of things that are plainly visible from public spaces is a constitutional right - and that includes federal buildings, transportation facilities, and police and other government officials carrying out their duties." The ACLU has provided a Know Your Rights Guide for Protestors & Photographers.

Stephen L. Haynes has also written a very informative paper Controlling Photography in (and of) Private Places that will aid you in understanding photography and the law.

Of course, while you have an absolute right to take photography in a public venue, this right does not necessarily extend to private property. Private property owners my limit some types conduct by individuals on their property, and even while standing in a public venue, where you have the right to take photographs (yes, you can photograph private property that is visible from a public venue), you should consider that:

• Extending a camera over a fence may be a trespass.
• Flying over a property for the purpose of taking photos may be a trespass.
• "No Trespassing" signs are not required in order to establish a space as private.
• You do not have the right to photograph someone in an area in which they have a reasonable expectation of privacy, such as their home, medical facilities, etc. If you take photos of people in such situations with your 200-400mm zoom lens, be prepared to be accused of violating their privacy.
• Whether a photograph or video was taken legally depends on the location where it was taken, as well as the photographer's right to be on that property.