Status Report on the War on Photography

Worth reading: Morgan Leigh Manning, "Less than Picture Perfect: The Legal Relationship between Photographers' Rights and Law Enforcement," Tennessee Law Review, Vol. 78, p. 105, 2010.

Abstract: Threats to national security and public safety, whether real or perceived, result in an atmosphere conducive to the abuse of civil liberties. History is littered with examples: The Alien and Sedition Acts of 1798, the suspension of habeas corpus during the Civil War, the Palmer Raids during World War I, and McCarthyism in the aftermath of World War II.Unfortunately, the post-9/11 world represents no departure from this age-old trend. Evidence of post-9/11 tension between national security and civil liberties is seen in the heightened regulation of photography; scholars have labeled it the "War on Photography" - a conflict between law enforcement officials and photographers over the right to take pictures in public places. A simple Google search reveals countless incidents of overzealous law enforcement officials detaining or arresting photographers and, in many cases, confiscating their cameras and memory cards, despite the fact that these individuals were in lawful places, at lawful times, partaking in lawful activities.

This article examines the so-called War on Photography and the remedies available to those who have been unlawfully detained, arrested, or have had their property seized for taking pictures in public places or private places open to the public. It discusses recent incidents that highlight the growing infringement of photography rights and the magnitude of the harm that law enforcement officials have inflicted, paying particular attention to the themes these events have in common. It explores the existing legal framework surrounding photography rights and the federal and state remedies available to those whose rights have been violated. It examines the adequacy of each remedy including: (1) declaratory and injunctive relief, (2) Section 1983 and Bivens actions, and (3) state tort remedies. It discusses the obstacles associated with each remedy and the reasons why these obstacles are particularly hard to overcome in the context of photography. It then argues that most, if not all, of the remedies discussed are either inadequate or altogether impractical considering the costs of litigation. Lastly, this article will discuss the reasons why people should be concerned about the War on Photography and possible ways to reverse the erosion of photography rights.

Posted on June 14, 2011 at 1:45 PM • 41 Comments

Comments

Robert David GrahamJune 14, 2011 2:16 PM

The most important thing people can do in order to protect their rights is to take pictures. People are too afraid of spending a night in jail, or even of the police yelling at them, that they don't take pictures. That leaves only a small number of brave people standing alone, protecting people's rights.

I suggest the next time you go through airport security, take some pictures.

pbJune 14, 2011 2:35 PM

I see the SSRN web site is as broken as ever with respect to actually serving up the document.

davidshayerJune 14, 2011 3:15 PM

Photographers should organize a mass photo shoot. Thousands of photographers should march on some "restricted" (but completely legal) building, like the supreme court, tell the police their (completely legal) plans ahead of time, take thousands of pictures, and post them all.

The only way to retain your rights is to actually exercise them.

TGRJune 14, 2011 4:20 PM

re: davidshayer
You mean like these?
https://p10.secure.hostingprod.com/@spyblog.org.uk/ssl/parliamentprotest/2009/02/new_scotland_yard_-_mass_photography_protest_-_11_am_monday_16th_february_2009.html

http://widget.demotix.com/news/228925/...

Admittedly, not US....but then again, the UK actions were in response to a specific law restricting those freedoms. As the OP shows, this happens to individuals whose rights are infringed upon, or are browbeaten by an authority figure into self restriction. Were it the entirety of the population (a la s44), then I believe we'd see more action. However, until then the response may be"...because I wasn't a [photographer]."

PonterJune 14, 2011 4:32 PM

As patriotic law-abiding Americans we should applaud the officials who vigilantly detect and prosecute all suspicious activities, including photography. That's not because photography itself poses any danger to national security (even though it is annoying), but because it keeps the officers vigilant.

Even though terrorists are a horrifyingly evil threat, they thankfully are rather few and far between. Treating photographers as surrogate terrorists gives the heroes at the Front Lines of the Global War On Terror continual opportunities to practice detection and apprehension skills that ultimately will protect the Homeland from actual terrorists who seek to kill Americans.

Any competent jurist will tell you that photography is not a protected right under any possible interpretation of the constitution or federal statutes. Rather, it is one of many privileges that are appropriately granted or denied by officers according to the current threat level. I think everyone would agree that curtailing the privilege of photography is a worthwhile precaution that helps law enforcement officers and security guards hone their vigilance to keep us safe and secure from any actual threats that emerge.

And all the "incidents" involving the supposed rights of photographers are ultimately the fault of people who, when ordered by officers or guards to cease photographing and surrender their cameras, refuse to immediately OBEY the order. The officer or guard is entirely justified in viewing such disobedience as an irrefutable sign of guilt, especially when accompanied by pathetic whining about "rights" or "free expression." Under those circumstances, the officer or guard acts appropriately when he or she forces compliance and sends the perpetrator off to prison. This is a time of War, and it is better to be thorough and careful about protecting the Homeland than to let a potential terrorist exploit "rights" and "liberty."

Some liberal law professors may whine about phantoms of lost liberties. But I think any patriotic American would agree that in Wartime, the rights, liberties, and privileges that might be harmless in normal times create dangerous vulnerability and weakness for terrorists to exploit. The Homeland is besieged by terrorist enemies within and without. So it is time for Americans to replace the argumentativeness and insistence on "rights" and "due process" appropriate in peacetime with the proper Wartime mindset of OBEDIENCE and UNQUESTIONING RESPECT FOR AUTHORITY! Beyond their heroic Mission to protect the Homeland, those officers and guards who protect their property from photographers-- and also the TSA, who heroically defend aviation-- are helping to instill the compliance and obedience in the law-abiding public that is critical to VICTORY!

In the future, when the Global War on Terror is won and the the Terrorist Scourge has been completely and permanently eradicated from the face of the Earth, it may again be appropriate to restore the Bill of Rights. But for now, when the Homeland faces a dire threat of Unspeakable Evil, the notions of "rights" and "liberties" make the Homeland unacceptably vulnerable to enemies who hide behind them as they plot mass destruction. Any officer or guard who strengthens the Homeland against the Terrorist Threat by refusing to recognize "rights" and "liberties" should be rewarded for vigilance and dedication to Victory!

God bless America!

Anonymous 1June 14, 2011 4:42 PM

Is Ponter for real or just a satirist?

Never mind that by the time law enforcement have trampled on the rights of thousands of innocents they'll be too jaded to do the right thing when a terrorist does come along.

tedJune 14, 2011 5:07 PM

The issue is one of fear. The police are used to having their statements taken as unquestionable. Cameras mean that their word will no longer be regarded as the last word. That loss of power is frightening to them.

OxJune 14, 2011 5:07 PM

Hidden video cameras are cheap and easy to get. I rely on those mainly just because people tend to act differently when a camera is clearly "on" and in their face.

So this whole thing is absurd.

If someone is serious and is casing a place, they would not be caught dead with a camera outside such a place.

I suppose a terrorist who plans to blow himself up doesn't care about post-mortem evidence... but really, how often does that happen?

People should get tinfoil hats to protect themselves from lightning strikes, as that is far more likely.


Tangerine BlueJune 14, 2011 5:10 PM

That anybody could possibly take Ponter's comment as anything but satire is depressing in its own right.

AnonJune 14, 2011 5:25 PM

Tangerine Blue: Have you not heard of Poe's law? It applies to more than just religion (and even then the last line of Ponter's rant is overtly religious in nature).

Sure it looks like satire, but there are people out there who would indeed mean it.

See http://rationalwiki.org/wiki/Poe%27s_Law

AndyJune 14, 2011 6:05 PM

In our country they increased the prision sentence for buglarys for using google earth, if the proved you used it to scope out the place.
If your smart enought to stay free doing iilegal thinks, you,re make more money legaly.
What are threats skill level increaseing

Andrew June 14, 2011 6:14 PM

I've found the linked document helpful in educating people on both sides of the fence.

http://www.krages.com/ThePhotographersRight.pdf

Armed robbery is still armed robbery whether committed by a thug robbing a convenience store, a security guard taking a photographer's memory card, or a police officer making an unlawful arrest and thereby violating Constitutional rights under color of authority.

Bruce ClementJune 14, 2011 7:40 PM

@Anonymous 1 "Is Ponter for real or just a satirist?"

One sad thing about today is that it is increasingly difficult to tell if a rant like this is

A) Satire
B) Demented
C) Official Policy
D) All of the above

The opposition party here recently voted for a government bill that established guilt on accusation for copyright violations and claimed that they only voted for it to try and stop it ... leaving thinking New Zealanders without any party worth voting for come the November election.

Jym DyerJune 14, 2011 8:34 PM

=v= I've seen videocameras shrink since the Edison Carter days, even as they've developed better upload capabilities (Eye-Fi and qik.com aren't quite there yet, though). At the same time, though, the laws have definitely been getting more onerous and old laws, more ridiculous. Chicago PD are right now actively prosecuting a videotaper for "wiretapping" because his camera picked up sound!

Dirk PraetJune 14, 2011 8:50 PM

Where I live, the law is quite clear on the subject. For private persons, there are strict privacy and portrait rights, especially when pictures are taken for commercial purposes or considered harmful to one's reputation without any further informational or social relevance.

These do however not apply the same way to public figures or civil servants while in function. With the exception of special intervention teams, this means that LEO's over here can be filmed or photographed as long as you don't interfere with their work or hastle them in any other way. The same goes for most public areas.

In practice, LEO's do hate it when being filmed or photographed and will always try to intimidate you out of it. At first they will ironically cite privacy concerns over whatever private person it is they are dealing with and who is also in the picture (if any). If you persist, they will just threaten you with a perfectly legal trip to the station where they can easily hold you for up to six hours without any probable cause whatsoever being required. So unless you're willing to lose half a day (or night) over whatever it is you're filming, it's most of the time a very bad idea.

Richard Steven HackJune 14, 2011 11:09 PM

The photographing of law enforcement is a major issue. Just recently audio was posted on YouTube of a case where police drew guns on bystanders with video cameras recording the police shooting of a suspect.

I mean major harassment, "get down on your knees", bla, bla, stuff in this case. Guns drawn.

Benoit Footage of Miami Police Execution of American - er, prey
http://freedomguide.blogspot.com/2011/06/...

They are on a public street with civilians all over the place, blasting a hail of bullets, most of which will go through the car and into nearby buildings, to take down a guy who turned out to be unarmed.

If that isn't police being more of a threat to citizens than many criminals, I don't know what is - other than the other common case of cops smashing down the door to the wrong house in a drug raid and shooting the owner for responding. Or perhaps cops just randomly beating blacks half to death for no reason.

It may offend some people, but as a good anarchist, frankly I believe the only good cop is a dead cop.

There is such a thing as "casing a joint" and "loitering" - not to mention "lurking with intent to loom" :-) - so it's probably not a bad idea for a cop to be interested in someone "out of place" with a camera in front of, say, a nuclear power plant. But a tourist photographing a major government building in Washington, D.C., or some state capitol, obviously has no business being harassed.

The problem is that "out of place" usually means the suspect is black or wearing a turban - which means he's a Sikh, not a Muslim, you moron...:-)

Emperor Chin of ChinaJune 14, 2011 11:40 PM

http://en.wikipedia.org/wiki/...

Thank you Mr. Police and Emperor Qin Shi Huang for burning cameras, cellphones
and books.
1.)unify all thought for Mr. Police is always correct
2.)stop dissent through libel by burning cameras and books
3.)Mr. Police and the First Emperor fear that 'other histories' will
expose their lies.
4.)Those who discuss 'the books' or photograph 'the truth' shall be put to death.

5.)Their families shall be put to death
6.)Other honest members of Mr. Police and authorities of First Emperor must
watch the others. Failure means the 'HONEST authorities' are equally guilty.

7.)First Emperor was haunted by dreams of executed prisoners and likely paranoid.
So, he sought 'prolonged life' and immortality. After being deceived by two
alchemists, First Emperor ordered more than 1000 scholars to be buried alive.
8.)Mr. Police was haunted by dreams of injustice. So, he suppresses truth
in the form of cameras and cell-phones. Mr. Police MAKES UP NEW LAWS to
further the War on Photographers and 'Civilians.'

9.)There is no historical relation between the burying of scholars and
the Taliban translated as 'the students.'

10.)The Country of China is founded by Emperor Chin-a, Chin, Qin.

PS. no offense to USA CITIZENS called 'civilians' by police; some of whom are
VETERANS and 'reserve duty - out of uniform.' Salute, fellow citizens!

PPS.First Emperor's son tried to change his mind. He was banished to the frontier.
Mr. Police's wife and/or girlfriend tried to change his mind. Sometimes, he beats her
(verbally, of course)

11.)The quick fall of the Qin Dynasty was attributed to this harshness, especially
'burial of the scholars' and burial of the CIVILIANS.

PPS. Look for history lesson number 9 and the burning of books and burning of
witches at the Salem Witch Trials.

Clive RobinsonJune 15, 2011 2:58 AM

@ Bruce Clement,

"...leaving thinking New Zealanders without any party worth voting for come the November election..."

Simple question, "Name any politician that's alive, world wide who actualy is worth voting for?".

When you know the answer to that either move to where ever they are or, stay put and play the politicians game.

That is put yourself up for election on an appropriate "vote winner" agender, then when in do what you like at the tax payers expense for a term just like the others...

BillJune 15, 2011 3:45 AM

I take photographs in London all the time, and carry my DLSR wherever I go.

The MET and City Police seem to have got the message, because I've not been quizzed this year (2011). Some have even smiled. So if any are reading this, good for you.

Private security guards - in public spaces - remain a problem, and they so rarely respond to reason, I don't bother with it. I greet their approach with a hearty "Get lost Skippy and call a real police officer!" instead.

So far, works a treat although I toying with the idea of creating a website to post their photo and geolocation. You know, just in case other photographers would like to drop by and take their mug shots too "Say cheese skippy!" :)

Danny MoulesJune 15, 2011 4:12 AM

I always enjoy the practice of taking a shot of the local constabulary as I walk by. WY police have never bothered me, to their credit.

Clive RobinsonJune 15, 2011 5:12 AM

@ Richard Steven Hack,

"The problem is that "out of place" usually mean the suspect is black or wearing a turban - which means he's a Sikh, not a Muslim, you moron...:-)"

To which if you are lucky you will get the reply "Sikhs they are the ones with the big knives right?"

Remember for some "situational awareness" is "If it moves it's a threat, if it doesn't move it's even more of a threat. If it ducks when you shoot at it, it's got paramilitary training so call in heavy reinforcments". And worse their idea of "being prepared" is "Tie a strip of cloth around your head and load alternatly with dumb dumb, and armour piercing rounds with every fifth round being tracer so you can see where you are shooting" such is the age of Cinerama Learning.

RoyJune 15, 2011 8:02 AM

When a cop 'confiscates' your camera, the reality is that a police officer acting under color of authrity while carrying a deadly weapon is committing armed robbery in front of witnesses, and is now in possession of stolen goods. The 'remedy' here is a prison term long enough to turn his life around. Nothing less will begin to fix the problem.

What makes this so much worse is that all of the other cops around will back his play, no matter what his crime or crimes. No cop will every try to stop another cop from pursuing his criminal intents. No cop will arrest another cop for a violent crime he saw or sees him commit. To protect their brotherhood, cops routinely obstruct justice and make themselves accessories to, or after, the fact. You cannot get a cop to take a crime report if the perpetrator is a cop. The corruption is complete.

Robert in San DiegoJune 15, 2011 10:15 AM

A Marine Corps Air Station Miramar policeman once flagged me over on Kearny Villa Road because they were stopping all cyclists, as they'd a report that someone on a bike was taking pictures of the base (he said). This was right by the onramp from KVR Southbound onto the 163 -- a very well known cyclist-killer road feature. The poor cop blanched when he realized we had traffic moving at about 15 MPH in excess of the speed limit three feet away on the right and two feet away on the left. He was so scared I didn't even bother bringing up the issue of jurisdiction -- especially since I had someplace to get to.

GeorgeJune 15, 2011 12:38 PM

Regrettably, there are increasing numbers of Americans who would respond "Amen!" to Ponter. And they aren't necessarily Evangelical Christians, or even Republicans.

If the majority of Americans are indeed cowering sheep willing to sacrifice once-sacred rights to Leaders and uniformed officers who offer dubious claims of the sacrifice being "necessary for security," perhaps we no longer deserve rights and liberties. Perhaps an authoritarian Security [Theatre] State is what Americans truly desire.

The only problem will be dealing with the anger when those who enthusiastically support "enhanced security" figure out that even an authoritarian Security [Theatre] State cannot protect its subjects from terrorism (or from any other Evil du Jour that supposedly justifies eliminating "guaranteed" rights). The TSA (for example) seems intent on modeling its "airport security" after prisons, where inmates (i.e., passengers) surrender their rights, are subject to the arbitrary whims of uniformed officials, and have their persons and belongings continually subject to intrusive search. But as we all know, prisons are anything but safe or secure places. Despite the pervasive and oppressive "security," prisons are rife with contraband and violence.

But once the sheep figure out they've been fleeced, it will be too late. The Creator only endows us once with certain inalienable rights. Once you've voluntarily surrendered those gifts, they're gone forever.

PhilippeJune 15, 2011 12:40 PM

Cops watch to many violent TV and american movies depicting cops and robbers and terrorists. They transpose that view into their daily work. No wonder there are so many "incidents".

jackJune 15, 2011 2:35 PM

So we have a possibility for 3 simultaneous developments:

A. increase in cameras in mobile personal devices
B. increase in surveillance cameras in the environment
C. increase in restrictions against photography to members of the public

Clive RobinsonJune 15, 2011 3:15 PM

@ Richard Steven Hack,

"Was that "dumb dumb" deliberate or a typo? :-)"

Hmm what am I to say, I could be all noble and say 'I chopped down the cherry tree', or I could go for the "max kudos" approach.

The truth was my fingers inadvertantly typed my inner thoughts on those I was describing with just a hint of satire ;)

JasonJune 15, 2011 3:37 PM

@ Bill
Re: "I take photographs in London all the time, and carry my DLSR wherever I go."

Are you a non-threatening looking white male? If so, welcome to white privilege!

If you are of a browner persuasion or have visible tattoos or lots of piercings or tend to wear all black and wear a coat when it's warm, then I am shocked that you are never questioned.

tommyJune 15, 2011 9:05 PM

@ Dirk Praet:

I like your laws. LEOs who are acting lawfully have no need to be concerned about being photographed doing so, with the few exceptions you mentioned. They have always been accustomed to acting in the public eye, which may include large crowds gathered around. It's more of a threat to the LEO that someone in the crowd may interfere, throw rocks, bottles, etc. than that they may photograph them. If in practice the law doesn't hold up, perhaps there is a need for some sort of pressure on legislators, class-action lawsuit, etc...

Ironically, many police vehicles in the US are now equipped with dashboard cams, precisely because such could be used to refute the subject's claim that he was sober (he fell down while trying to walk in a straight line), did not resist arrest, etc.

@ In General:

I still don't understand how photographing, say, the Golden Gate Bridge could help someone attack it, if you're willing to fly your airplane into it or place explosives, etc. You could hide the explosives a little better with an advance plan, but walking across could provide the info. Or a telephoto lens from a boat or distant building.

I remember the flap about pixelating aerial photos of the Capitol, VP's residence, and White House, to make it harder for the t*rr*r*sts to attack them. Classified info: The White House is at 1600 Pennsylvania Ave, NW, Washington, D.C., USA. This, and other highly-classified information that would be valuable to attackers, including a huge photo gallery of exterior and interior, can be found at a top-secret secure web site, but I'm sure those here have the skillz to get through to it:

http://www.whitehouse.gov

Address of the building:

http://www.whitehouse.gov/about/history


@ Richard Steven Hack:

"... as a good anarchist, frankly I believe the only good cop is a dead cop."

And if I were to say, the only good anarchist is a dead anarchist? (The same thing was said about Native Americans by the European immigrants.)

I realize that your experiences have made you see only the worst qualities in only the worst cops, just as LEOs after a while tend to become cynical, because most of their dealings are with the worst people, or the worst side of mostly-good people, which is most of us.

I have in fact seen a number of LEOs convicted of crimes that ended their careers, ruined their reputations, forfeited their pensions, etc. Sometimes, these investigations were in fact started by other LEOs on the same department, and not only from Internal Affairs. Prison is pretty much a death sentence for an LEO as soon as the word gets out "inside", which it always does, so they tend to be put in isolation, or isolation wings, or (I think) a special branch of the prison system in most states and the Fed system. It does happen, and it isn't fun for the LEO.

I respect your rights of free speech, but I'd appreciate your not throwing any Molotov cocktails or whatever if I'm in the vicinity, even if it's at a cop.

Jared LesslJune 16, 2011 1:41 PM

Ponter, good job channeling John Ashcroft! That "phantoms of lost liberties" schtick was a trademark of his. I give this 8/10.

> The officer or guard is entirely justified in viewing such disobedience as an irrefutable sign of guilt, especially when accompanied by pathetic whining about "rights" or "free expression."

Seriously guys, this is some excellent satire right here.

meJune 16, 2011 3:23 PM

"It may offend some people, but as a good anarchist, frankly I believe the only good cop is a dead cop"

Offend me? Stop overestimating yourself. The only emotion you are capable of eliciting in me is sadness - the same sadness I feel for anyone who displays ignorance and wishes for the death of others.

The fact is you are *not* a "good anarchist". Your comment concretely demonstrates that you know very little about anarchism or anarchist thought. I don't suppose you could check out a book from the library, could you? No, using a public library would be contrary to you as a "good anarchist", right?

Yeah. Please go crawl back under whatever rock it is you live under.

John CampbellJune 16, 2011 4:02 PM

I wonder what would happen if, instead of cameras, a flock of artists w/ easels and paint (or sketchbooks, etc) showed up en masse in front of a "sensitive" building and started making paintings of it.

(looks above)

I can't believe I wrote that with a straight face. How is a painting or drawing going to be differentiated from photography?

billJune 17, 2011 4:11 AM

@Jason

"Are you a non-threatening looking white male? If so, welcome to white privilege!"

Yes, and your point is well made unfortunately.

In recent years even we 'white British privileged non-threatening male photographers in London' were regularly harrassed by Police. To the point where I carried a faux ID card which reads:

"STOP AND SEARCH CARD - I pledge to waste your time if you decide to waste mine" which was organised by Mark Thomas guardian.co.uk/libertycentral .

So your point is entirely valid, but there has been a small (anecdotal) improvement, a green shoot perhaps worth noting; thanks for reading and responding :)

billJune 17, 2011 6:32 AM

@ John Campbell

Funny!

Arguably the easils could obstructions.

I was night shooting with a tripod, when a policeman arrived saying I was obstructing the pavement, which is an offense.

Untrue, I was on part of a traffic island unused by pedestrians, then pointed out he was standing in the road obstructing traffic, at night, dressed in black.

Dave FJune 17, 2011 12:04 PM

@george: Regrettably, there are increasing numbers of Americans who would respond "Amen!" to Ponter. And they aren't necessarily Evangelical Christians, or even Republicans.

Regrettably, today there are increasing numbers of Americans who would respond "Amen!" to Ponter. And they might be Atheists (OK, maybe not the 'Amen!' part), even Democrats and Progressives.

Rememner Waco was under the command of a Democrat Female AG.

Richard Steven HackJune 17, 2011 4:15 PM

Tommy: "I'd appreciate your not throwing any Molotov cocktails or whatever if I'm in the vicinity, even if it's at a cop."

Back when I was planning my terrorist spree, I fully intended to avoid killing anyone who didn't deserve it.

Of course, THESE days I pretty much adhere to the line from "The Assassination Bureau" (great movie, rent it!) when Clive Revill says, "You can always find a good moral reason for killing anybody."

Me: You really think anarchists are non-violent pacifists? There's an entire wing that thinks otherwise. There's a reason anarchists are frequently represented by the black bomb with a fuse symbol.

The Situationists said it best:

"In the barbarity of riots, the arson, the popular savagery, the excesses that terrify bourgeois historians, we find exactly the right vaccine against the cold atrocity of the forces of order and hierarchical oppression."

Joe VJune 18, 2011 3:37 PM

Police are public servants. As such, it is intrinsic that they, and their behavior, remain under public scrutiny. Anything less is a slippery slope leading to a police state.

As for the straw man argument about their security, the job is intrinsically dangerous; stay out of the kitchen if you can't stand the heat.

As for the notion that their is no intrinsic right to public photography, I propose that the entirety of the historic legacy of street photography be destroyed, right now. That means all images, prints and negatives by Henri Cartier Bresson, Robert Doisneau, Alfred Eisenstaedt, W. Eugene Smith, Garry Winogrand, et al, will forever be lost.

This also implies that we will lose all future images from potential Winogrands, as well. I'm not sure if the loss to our culture is worth the added sense of security theater.

~Joe

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