DEVIN CHRISTOPHER BLOG

patrickjoust:

“You’re making a mountain out of a molehill.”

-MTA police officer

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Mike/boyghost has written a great little piece on the recent incident that transit enthusiast and photographer Christopher Fussell went through in Baltimore. I really admire Mr. Fussell’s stance on the issue. The officers obviously tried their best to intimidate him and he did a great job of fighting back with intelligence and reserve and without giving in.

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boyghost:

A student from Portland, Oregon was stopped in Baltimore after videotaping and photographing the Light Rail system. He was briefly (48 minutes) detained by law enforcement and Maryland Transportation Authority public transit employees for questioning. During this “interview,” the officers throw out a lot of so-called “laws” justifying their requests that he stop photographing. The photographer stands his ground, politely asking for clarification on those laws and his status as a detainee.

This video is a great example of my number one gripe about the status of photography in the years since September 11th — that photographers and photography are inherently suspicious, that an interest in public photography is immediately cause for alarm, and that everyone is immediately entitled to a right to privacy in public places. Equally alarming is the fact that at no point during this 48 minute street interview is any official policy, regulation or law cited justifying the actions of the intervening officers.

A short time into the interview, one of the officers invokes the PATRIOT ACT as a law barring photography of critical infrastructure. While the PATRIOT ACT does in fact list “transportation” as a part of the nation’s critical infrastructure, it does not state the legality or illegality of photographing it. Perhaps the officer was thinking of a joint Department of Homeland Security and Federal Bureau of Investigation (DHS-FBI) memorandum dated August 3, 2004 and titled “Suspicious Activity Reporting Criteria for Infrastructure Owners and Operators” which says, in part:

Report pedestrian surveillance near critical infrastructure/key resource facilities involving any surveillance activity of sensitive operations, including photography, videotaping, or extensive note-taking/use of audio recorder (regardless of the number of individuals involved), or mobile surveillance by cars, trucks, motorcycles, boats or small aircraft.

So yes, an operator of critical infrastructure is advised by DHS to report surveillance of critical infrastructure. But what of the legality of taking photographs? Can a person be arrested for taking a picture of trains?

Full disclosure, I am not a lawyer, nor do I pretend to understand the intricacies of Federal anti-terrorism laws and their ramifications on the rights of photographers. Therefore, I cannot provide a trustworthy interpretation of these laws and policies. I can not be held liable if you choose to use this post as an alibi if you get detained photographing something “critical.”

However, using publicly available documentation and the findings of actual lawyers, it is easy to establish that photographing anything and anyone in public or in public view is fair game. Photographing critical infrastructure, while certainly a cause for extra scrutiny, is not illegal. No law or statute has yet been released barring photographers from taking photographs of planes, trains, water towers, bridges, refineries, power plants, etc. In fact, a DHS memorandum I had earlier posted says this about the photography of federally owned and operated structures:

Law and enforcement and PSOs [Public Safety Officers] are advised to review the guidance provided in this IB [information bulletin] when encountering individuals photographing or videotaping the exterior of federal buildings and apply the guidance in the performance of their everyday duties to enhance the protection of federal facilities. It is important that law enforcement and PSOs uphold the public’s general right to photograph the exterior of federal structures while being vigilant with respect to to suspicious indicators of terrorist or criminal activity.

So the PATRIOT ACT says nothing of the legality of photographing critical infrastructure. There is no official guidance on the legality of photographing critical infrastructure. The DHS has acknowledged that individuals have the right to photograph federal facilities. And, according to the same memorandum,

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, as this constitutes a seizure or detention.

And here lies my greatest frustration with this whole debacle: officers are not fully aware of the policies they are upholding, real or imaginary. It would be one thing for an officer to ask a person why they are photographing something. I don’t believe there is any harm in approaching an individual and asking them what they are doing. However, the line is crossed when an individual is detained, questioned, and misled without any affirmative proof of the legality of their actions.

As photographers, professional or amateur, it is important to be aware of your rights. The young man in this video proactively and respectfully asked for his status as a detainee, which is important — if you are threatened with arrest, you must be made aware of the law you are breaking.

I have posted these before, but they are worth sharing again and again and again:

• Photographer’s Rights card
• Photojojo’s Ten Commandments of Photography
• The Digital Photography School’s international rights cards

Happy shooting!