The Law and the Photographer
Stories like this are not uncommon in our hyper-vigilant world where, ever since 9/11, even the slightest appearance of some perceived impropriety might propel onlookers to start throwing around the dreaded “t-word.” But it’s an absurdity of monumental proportions to jump to the conclusion that every time you see someone pull out their camera they are in the early phases of a terrorist plot. Nevertheless, this is the reaction — or overreaction — that photographers are likely to encounter at some point.
The good news is that, whether you are a tourist taking snapshots of the local architecture or a professional photojournalist documenting a protest, you have rights that protect you (and your camera) from harassment and other violations.
The Public Domain
The law concerning what an individual can photograph is actually quite uncomplicated: basically, if you can see it, you can shoot it. This, of course, applies to public spaces; you have the right to photograph anything and anyone in “plain view,” including federal/government buildings, transportation facilities, and law enforcement officials. The two exceptions to the plain view concept are:
certain military and energy installations — due to national security concerns --
individuals who have a reasonable expectation of privacy.
Thus, photographing someone through a window in their home is strictly off limits as it is understood to be a violation of their rights as a private citizen.
The Private Sector
Taking photos on private property is also permitted so long as that property is open to the public. This may seem somewhat counterintuitive at first glance; what kind of private property is freely accessible to the general public? The most common examples of this include shopping malls, restaurants, banks, and office building lobbies. The one caveat in this situation is that the property owner has the right to set and enforce the rules for his or her property. So, if you are asked to stop taking photos and refuse to comply, the property owner can not only insist that you leave, but may also — at their discretion — have you arrested for trespassing.
The Law and the Enforcers
Not only does the law set forth guidelines about where and what one may photograph, but it also addresses how police are expected to conducted themselves when handling incidents that involve photography.
Police cannot confiscate your camera or memory card or demand access to your photographs without a warrant. Even if you are arrested for trespassing, as in the above example, your photographs are to remain your property.
Under no circumstances are police lawfully permitted to delete the contents of a camera or memory card. The 4th Amendment of the United States Constitution regards this act as destruction of evidence and expressly forbids it.
Police may command any individual to cease any activity that is legitimately interfering with sanctioned law enforcement procedures. The potential problem here relates to very loose interpretations of what “legitimate interference” is and isn’t. As public officials, police conduct is subject to scrutiny; sometimes that scrutiny takes the form of being photographed by citizens. Regardless of how much a police officer may resent being photographed, it is the right of the individual to do so as long as you do not break any other laws in the process.
Additional Legal Considerations
While airport photography has taken a more anxiety-inducing turn in post-9/11 America, the Transportation Security Administration (TSA) has gone on record to convey that photography is indeed allowed in and around security checkpoints as long as you are not interfering with the screening process and are not photographing its security monitors. Furthermore, the TSA advises that local agencies may enforce prohibitions that the TSA itself does not.
Video recordings generally are afforded the same rights and restrictions as still photographs, with one major exception. The visual component of a video recording is fully protected, while the audio portion may or may not be, depending on where the recording was made; some states have attempted to classify the audio component as an illegal wiretap. Obviously, there is an enormous swath of gray area in this regard, further complicated by the constant flux of legal challenges to the statute and the legal tinkering and fine-tuning that occur as a result.
As the photographer, you hold exclusive copyright to any shots you take and may use those shots for virtually any non-commercial purpose.
How should you respond if you are ever confronted by the police for taking photos?
Stay calm, be polite, and don’t do anything to provoke a physical altercation.
Try to get a clear answer as to why you are being stopped. The most important question you can ask at this point is whether you are free to leave. The officer’s reply will help you determine your next course of action. If you are told that you are not allowed to leave, that means you are being officially detained. Detaining a citizen is not lawful without reasonable suspicion that the individual has, is preparing to, or is in the midst of committing a crime. And since photography is not a crime….
Ask what crime you are, in fact, suspected of committing. If necessary, remind the officer that your photography is protected by the very law he or she is unfairly attempting to enforce.
The case of Ian Van Kuyk is, unfortunately, not an anomaly. A cursory Google search will reveal an inordinate number of hits pertaining to citizens who have had to endure some level of harassment simply for taking photographs. An important factor common to nearly all of these cases is that none of the individuals in question were breaking any other laws; they were not trespassing, interfering with police, or engaging in vandalism. And in each of these cases photographers have stood their ground. The importance of this cannot be understated. The impact that photography has on society is not limited to the artistic realm, it extends well beyond the preservation of family memories; photography, as a documentary tool, often serves to keep government power in check. Does it always work? Of course not. But an awareness of the ubiquitous state of the camera in our modern world may be enough to keep at least a few public officials honest and forthright in their dealings with the citizens whom they simultaneously serve and wield power over. But when it comes to power, never underestimate the power of the average person with a camera and the impulse to make a difference.