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The following was forwarded to me and I thought it might be of interest to aircraft spotters here. It deal primarily with rail/public transit photography in the USA, but the lessons can be applied to aircraft photography as well. Apologies for the length...note the bold and italic portions.
----------------------------------------------------------
PTP NOTE: Harassment of transit and railway photographers by law
enforcement personnel - lately on the pretext of "security" concerns in the
post-Sep.11th era - is becoming of increasing concern to many public
transportation professionals who depend on photographic images to
enhance public understanding of mass transportation and advance
research in technical issues. This harassment appears to be illegal, and
an infringement of clear constitutionally protected rights, as the following
article indicates.
----------------------------------------------------------
www.publictransit.us
May 06, 2004
EXTRALEGAL PHOTO BAN INSTIGATED BY NJ TRANSIT POLICE
CHIEF?
By Leroy W. Demery, Jr., and Michael D. Setty
A report from New Jersey suggests that measures to prevent terrorism
include an extralegal - perhaps unlawful - policy regarding photography of
New Jersey Transit (NJT) vehicles or facilities. Reports of harassment and
threats of camera confiscation by police of photographers require that NJT
management clarify its policy - and rescind any extralegal ban on
photography. We assume that NJT does not intend to waste tax dollars
defending itself against legal action brought by persons who have been
subjected to such harassment.
NJT Police Chief Joseph C. Bober, acting in concert with local law
enforcement officials, is alleged to have established that cameras will be
confiscated from anyone observed taking photographs of rail lines,
according to a report received from a New Jersey-based colleague.
This allegation is supported by recent reports of harassment by police of
persons photographing NJT facilities including the Hudson - Bergen Light
Rail Transit line and the new River Line. Another recent report describes
passengers aboard a River Line train warning another to put away his
camera lest he "get in trouble" with the police.
NJT's alleged "crackdown" was in apparent response to the March 11,
2004, terrorist attack in Madrid, Spain, that killed 190 people and injured
more than 1,800. Bombs, concealed in rucksacks ("backpacks"), were
planted aboard four Spanish National Railways (RENFE) commuter trains.
Ten out of 13 bombs were detonated by mobile ("cellular") telephone
during a five-minute interval as trains approached or stood at major
stations during the morning peak period.
Harassment of persons observed photographing rail vehicles and facilities
is nothing new in the U.S. Trespassing on private property (e.g. railroad
yards) is of course unlawful, but there are few restrictions on photography
from public areas. Legal "gray areas" include certain public facilities (e.g.
transit stations) where photography may be controlled (to insure that
photographers do not create hazards or interfere with operations) but not
prohibited.
Certain U.S. transit operators have a long history of harassing
photographers. Perhaps most notorious is Boston's Massachusetts Bay
Transportation Authority (MBTA); reports of harassment by MBTA
personnel for photography from the street or sidewalk are not uncommon.
New York City Transit (NYCT) was once a close second; a tourist from
Iowa was once arrested for photographing his mother in a subway station
with the "Grand Central" sign in the background.
Such harassment intensified following the terrorist attacks of September
11, 2001. Various reports describe police harassment of persons
photographing other subjects, e.g. bridges. One memorable report
described police harassment of two men observed photographing an oil
refinery near Philadelphia, silhouetted against the sunset. (If the subject
matter sounds "esoteric," consider that someone has published a large-
format art book with black-and-white photos of closed European steel
mills.)
The matter of photography in public places in the U.S. brings up a number
of issues - some of which make some people uncomfortable.
Portland lawyer Bert Krages has written and posted online an excellent
summary of legal issues related to photography ("The Photographer's
Right - A Downloadable Flyer" http://www.krages.com/phoright.htm ; he is
also the author of "Legal Handbook for Photographers: The Rights and
Liabilities of Making Images"
http://www.amazon.com/exec/obidos/AS...59X/bertpkrag-
20/102-1238331-1616147 ).
--In the U.S., absent specific legal prohibition (e.g. statute, ordinance),
people are free - and legally entitled - to take photographs of whatever
they wish when in a public place (e.g. streets, sidewalks, public parks), or
on private property, with the owner's permission or "implied consent"
(Krages).
--U.S. transit operators may "control" photography by individuals to
prevent photographers from impeding passengers or operations, or
creating unsafe situations. We are not lawyers, but we know of no
"specific legal prohibition" that empowers transit agencies to prohibit
photography. We also know of no recent reports - other than those
pertaining to NJT - suggesting that any U.S. transit operator has
attempted to do so.
--Three U.S. transit operators are known to require that individuals wishing
to take photographs obtain a permit (
http://www.nycsubway.org/faq/photopermits.html ). These are Port
Authority Trans-Hudson Corp. (PATH), Massachusetts Bay Transportation
Authority (MBTA) and Miami-Dade Transit Agency (MDTA; information
may not be correct). The legal grounds (if any) for such requirements are
not known to the authors. Most U.S. operators surveyed by
nycsubway.org provided very reasonable responses, such as the one
from the Chicago Transit Authority (CTA):
"CTA Rail Service Bulletin R146-03 states: ÔPersonal photographers are
permitted on CTA property if their activity is incidental, does not pose a
distraction to others and does not affect any customer or employee's
safety.'"
--In the U.S., many people believe they can control photography of
themselves, their property or their children by persons in public places.
Almost the opposite is true, for privacy rights are very limited in public
places. Anyone may be photographed without consent unless they have
secluded themselves in a place where they have a reasonable
expectation of privacy (e.g. rest rooms, dressing rooms, medical facilities,
inside their homes). Law enforcement personnel may prevent access from
areas where members of the public may impede their activities or
endanger safety, but do not have authority to prevent photography from
other locations (Krages).
Journalists are well aware of the above, as are police - but police may not
acknowledge this to anyone who does not produce press credentials.
--Some states, including California, have enacted so-called "anti-
paparazzi" laws to protect celebrities from intrusive photojournalists. Such
statutes are specific to "paparazzi" type behaviors and do not apply to
non-intrusive photography in public places.
--Attempts to control photography of property have been rejected by the
courts. Businesses cannot ban photography from public places on
grounds of safeguarding "trade secrets;" anything visible from a public
place cannot be claimed as a "trade secret" (Krages).
Early in 2003, singer - actress Barbra Streisand filed a $50 million lawsuit
against an amateur photographer for posting an image of her home on his
"California Coastal Records Project" website (
http://www.californiacoastline.org ; see menu item "About the Streisand
Lawsuit"). The photo, taken from a helicopter flying offshore, was part of a
documentary containing nearly 13,000 images of the California coast. The
photographer, multimillionaire Kenneth Adelman, successfully parried
Streisand's suit, which was dismissed by the California Superior Court at
the end of 2003. (Adelman could in theory file suit against Streisand for
unlawful prosecution.)
--Absent a court order, no private party has authority to confiscate film.
Threats to use force or call law enforcement may constitute theft or
coercion. When making an arrest, law enforcement personnel may have
authority to confiscate film but otherwise require a court order (Krages).
--Absent a court order, no private party has authority to confiscate
cameras; this also applies to law-enforcement personnel unless they are
making an arrest.
It is unfortunate that many people in the U.S. believe that film or camera
confiscation is okay and acquiesce meekly. Journalism students learn the
obvious recourse: file a theft charge. "Wildcat" photography bans do not
apply to "the media" or "press" because people who work in these
professions know the law and have the means to make life uncomfortable
for overzealous law-enforcement personnel.
--A person harassed for photography in a public place has specific legal
remedies, up to and including civil action or filing of criminal charges
(Krages). However, "standing up for your rights" is not necessarily a
means to "win friends and influence people" in the U.S. One who does
this tends to be labeled as a "troublemaker," or worse. We have seen
various unfavorable commentary on Krages' elucidation of photographers'
rights by "railfans" on bulletin boards and in letters to the editor. This does
not surprise us. As noted above, many people do not like being told that
they can exercise but little control over photography of themselves, their
property, or (sore point with more than one parent) their minor children
when in a public place.
One aspect of the current New Jersey Transit story has the cachet of an
urban legend. The story goes like this: under the federal "Patriot Act" of
2001, police may impose a ban on photography at any location in the
interest of national security, and may also confiscate cameras. If a person
objects, they may be arrested and denied access to a lawyer.
It would not surprise us to learn that some law-enforcement personnel
have used such "lines" to intimidate unwary individuals. The majority of
U.S. peace officers abide by the laws they are sworn to uphold, but a
minority is known to resort to unethical and unlawful tactics.
We are advised by legal sources that prohibitions on photography from
public areas on grounds of "national security" must be 1.) issued by a
"competent authority," 2.) be site-specific and 3.) be posted at that site.
For example, commanders of military installations may prohibit
photographs of specific areas, and the U.S. Department of Energy may
prohibit photography of designated nuclear facilities (Krages).
As stated above, we are not lawyers. That said, we find nothing in the text
of the "Patriot Act" - or legal analysis of same - on the subject of police-
imposed photo bans. Nor do we find anything that might grant
"extraordinary" powers to police to confiscate cameras. (see
http://library.riohondo.edu/Subject_...t_act-text.htm for a
summary of materials related to the "Patriot Act" available online; note the
item "The USA Patriot Act - a sketch"). Police may seize "evidence"
pertaining to an ongoing criminal investigation. However, absent an arrest
and criminal prosecution, "camera confiscation" is spelled "t-h-e-f-t," plain
and simple.
We are, to put it mildly, extremely skeptical that any U.S. peace officer in
his or her right mind would arrest and hold incommunicado a person
objecting to camera confiscation. However, it is no secret that some U.S.
law enforcement personnel routinely make threats that have no basis in
law. Anyone who does not fit the description of "foreign terrorist" probably
need not worry about being arrested and denied access to a lawyer.
"Photography has not contributed to a decline in public safety or economic
vitality in the United States. When people think back to the acts of
terrorism that have occurred over the last forty years, none have
depended on or even involved photography (Krages)."
This is true of "9/11" as well as the more recent attack in Spain.
To paraphrase a colleague, we think that it would behoove rail supporters
- especially those based in New Jersey - to approach elected officials with
this problem. Perhaps it is true, as U.S. Senator and Presidential
candidate Barry Goldwater once asserted that "extremism in the defense
of liberty is no vice." However, lawlessness in the defense against
terrorism is no virtue.
References:
Briginshaw, David. "Terror Attack Calls For Cool Heads And Vigilance."
International Railway Journal XLIV, IV (April 2004): 1.
Krages, Bert. The Photographer's Right - A Downloadable Flyer.
http://www.krages.com/phoright.htm
----------------------------------------------------------
PTP NOTE: Harassment of transit and railway photographers by law
enforcement personnel - lately on the pretext of "security" concerns in the
post-Sep.11th era - is becoming of increasing concern to many public
transportation professionals who depend on photographic images to
enhance public understanding of mass transportation and advance
research in technical issues. This harassment appears to be illegal, and
an infringement of clear constitutionally protected rights, as the following
article indicates.
----------------------------------------------------------
www.publictransit.us
May 06, 2004
EXTRALEGAL PHOTO BAN INSTIGATED BY NJ TRANSIT POLICE
CHIEF?
By Leroy W. Demery, Jr., and Michael D. Setty
A report from New Jersey suggests that measures to prevent terrorism
include an extralegal - perhaps unlawful - policy regarding photography of
New Jersey Transit (NJT) vehicles or facilities. Reports of harassment and
threats of camera confiscation by police of photographers require that NJT
management clarify its policy - and rescind any extralegal ban on
photography. We assume that NJT does not intend to waste tax dollars
defending itself against legal action brought by persons who have been
subjected to such harassment.
NJT Police Chief Joseph C. Bober, acting in concert with local law
enforcement officials, is alleged to have established that cameras will be
confiscated from anyone observed taking photographs of rail lines,
according to a report received from a New Jersey-based colleague.
This allegation is supported by recent reports of harassment by police of
persons photographing NJT facilities including the Hudson - Bergen Light
Rail Transit line and the new River Line. Another recent report describes
passengers aboard a River Line train warning another to put away his
camera lest he "get in trouble" with the police.
NJT's alleged "crackdown" was in apparent response to the March 11,
2004, terrorist attack in Madrid, Spain, that killed 190 people and injured
more than 1,800. Bombs, concealed in rucksacks ("backpacks"), were
planted aboard four Spanish National Railways (RENFE) commuter trains.
Ten out of 13 bombs were detonated by mobile ("cellular") telephone
during a five-minute interval as trains approached or stood at major
stations during the morning peak period.
Harassment of persons observed photographing rail vehicles and facilities
is nothing new in the U.S. Trespassing on private property (e.g. railroad
yards) is of course unlawful, but there are few restrictions on photography
from public areas. Legal "gray areas" include certain public facilities (e.g.
transit stations) where photography may be controlled (to insure that
photographers do not create hazards or interfere with operations) but not
prohibited.
Certain U.S. transit operators have a long history of harassing
photographers. Perhaps most notorious is Boston's Massachusetts Bay
Transportation Authority (MBTA); reports of harassment by MBTA
personnel for photography from the street or sidewalk are not uncommon.
New York City Transit (NYCT) was once a close second; a tourist from
Iowa was once arrested for photographing his mother in a subway station
with the "Grand Central" sign in the background.
Such harassment intensified following the terrorist attacks of September
11, 2001. Various reports describe police harassment of persons
photographing other subjects, e.g. bridges. One memorable report
described police harassment of two men observed photographing an oil
refinery near Philadelphia, silhouetted against the sunset. (If the subject
matter sounds "esoteric," consider that someone has published a large-
format art book with black-and-white photos of closed European steel
mills.)
The matter of photography in public places in the U.S. brings up a number
of issues - some of which make some people uncomfortable.
Portland lawyer Bert Krages has written and posted online an excellent
summary of legal issues related to photography ("The Photographer's
Right - A Downloadable Flyer" http://www.krages.com/phoright.htm ; he is
also the author of "Legal Handbook for Photographers: The Rights and
Liabilities of Making Images"
http://www.amazon.com/exec/obidos/AS...59X/bertpkrag-
20/102-1238331-1616147 ).
--In the U.S., absent specific legal prohibition (e.g. statute, ordinance),
people are free - and legally entitled - to take photographs of whatever
they wish when in a public place (e.g. streets, sidewalks, public parks), or
on private property, with the owner's permission or "implied consent"
(Krages).
--U.S. transit operators may "control" photography by individuals to
prevent photographers from impeding passengers or operations, or
creating unsafe situations. We are not lawyers, but we know of no
"specific legal prohibition" that empowers transit agencies to prohibit
photography. We also know of no recent reports - other than those
pertaining to NJT - suggesting that any U.S. transit operator has
attempted to do so.
--Three U.S. transit operators are known to require that individuals wishing
to take photographs obtain a permit (
http://www.nycsubway.org/faq/photopermits.html ). These are Port
Authority Trans-Hudson Corp. (PATH), Massachusetts Bay Transportation
Authority (MBTA) and Miami-Dade Transit Agency (MDTA; information
may not be correct). The legal grounds (if any) for such requirements are
not known to the authors. Most U.S. operators surveyed by
nycsubway.org provided very reasonable responses, such as the one
from the Chicago Transit Authority (CTA):
"CTA Rail Service Bulletin R146-03 states: ÔPersonal photographers are
permitted on CTA property if their activity is incidental, does not pose a
distraction to others and does not affect any customer or employee's
safety.'"
--In the U.S., many people believe they can control photography of
themselves, their property or their children by persons in public places.
Almost the opposite is true, for privacy rights are very limited in public
places. Anyone may be photographed without consent unless they have
secluded themselves in a place where they have a reasonable
expectation of privacy (e.g. rest rooms, dressing rooms, medical facilities,
inside their homes). Law enforcement personnel may prevent access from
areas where members of the public may impede their activities or
endanger safety, but do not have authority to prevent photography from
other locations (Krages).
Journalists are well aware of the above, as are police - but police may not
acknowledge this to anyone who does not produce press credentials.
--Some states, including California, have enacted so-called "anti-
paparazzi" laws to protect celebrities from intrusive photojournalists. Such
statutes are specific to "paparazzi" type behaviors and do not apply to
non-intrusive photography in public places.
--Attempts to control photography of property have been rejected by the
courts. Businesses cannot ban photography from public places on
grounds of safeguarding "trade secrets;" anything visible from a public
place cannot be claimed as a "trade secret" (Krages).
Early in 2003, singer - actress Barbra Streisand filed a $50 million lawsuit
against an amateur photographer for posting an image of her home on his
"California Coastal Records Project" website (
http://www.californiacoastline.org ; see menu item "About the Streisand
Lawsuit"). The photo, taken from a helicopter flying offshore, was part of a
documentary containing nearly 13,000 images of the California coast. The
photographer, multimillionaire Kenneth Adelman, successfully parried
Streisand's suit, which was dismissed by the California Superior Court at
the end of 2003. (Adelman could in theory file suit against Streisand for
unlawful prosecution.)
--Absent a court order, no private party has authority to confiscate film.
Threats to use force or call law enforcement may constitute theft or
coercion. When making an arrest, law enforcement personnel may have
authority to confiscate film but otherwise require a court order (Krages).
--Absent a court order, no private party has authority to confiscate
cameras; this also applies to law-enforcement personnel unless they are
making an arrest.
It is unfortunate that many people in the U.S. believe that film or camera
confiscation is okay and acquiesce meekly. Journalism students learn the
obvious recourse: file a theft charge. "Wildcat" photography bans do not
apply to "the media" or "press" because people who work in these
professions know the law and have the means to make life uncomfortable
for overzealous law-enforcement personnel.
--A person harassed for photography in a public place has specific legal
remedies, up to and including civil action or filing of criminal charges
(Krages). However, "standing up for your rights" is not necessarily a
means to "win friends and influence people" in the U.S. One who does
this tends to be labeled as a "troublemaker," or worse. We have seen
various unfavorable commentary on Krages' elucidation of photographers'
rights by "railfans" on bulletin boards and in letters to the editor. This does
not surprise us. As noted above, many people do not like being told that
they can exercise but little control over photography of themselves, their
property, or (sore point with more than one parent) their minor children
when in a public place.
One aspect of the current New Jersey Transit story has the cachet of an
urban legend. The story goes like this: under the federal "Patriot Act" of
2001, police may impose a ban on photography at any location in the
interest of national security, and may also confiscate cameras. If a person
objects, they may be arrested and denied access to a lawyer.
It would not surprise us to learn that some law-enforcement personnel
have used such "lines" to intimidate unwary individuals. The majority of
U.S. peace officers abide by the laws they are sworn to uphold, but a
minority is known to resort to unethical and unlawful tactics.
We are advised by legal sources that prohibitions on photography from
public areas on grounds of "national security" must be 1.) issued by a
"competent authority," 2.) be site-specific and 3.) be posted at that site.
For example, commanders of military installations may prohibit
photographs of specific areas, and the U.S. Department of Energy may
prohibit photography of designated nuclear facilities (Krages).
As stated above, we are not lawyers. That said, we find nothing in the text
of the "Patriot Act" - or legal analysis of same - on the subject of police-
imposed photo bans. Nor do we find anything that might grant
"extraordinary" powers to police to confiscate cameras. (see
http://library.riohondo.edu/Subject_...t_act-text.htm for a
summary of materials related to the "Patriot Act" available online; note the
item "The USA Patriot Act - a sketch"). Police may seize "evidence"
pertaining to an ongoing criminal investigation. However, absent an arrest
and criminal prosecution, "camera confiscation" is spelled "t-h-e-f-t," plain
and simple.
We are, to put it mildly, extremely skeptical that any U.S. peace officer in
his or her right mind would arrest and hold incommunicado a person
objecting to camera confiscation. However, it is no secret that some U.S.
law enforcement personnel routinely make threats that have no basis in
law. Anyone who does not fit the description of "foreign terrorist" probably
need not worry about being arrested and denied access to a lawyer.
"Photography has not contributed to a decline in public safety or economic
vitality in the United States. When people think back to the acts of
terrorism that have occurred over the last forty years, none have
depended on or even involved photography (Krages)."
This is true of "9/11" as well as the more recent attack in Spain.
To paraphrase a colleague, we think that it would behoove rail supporters
- especially those based in New Jersey - to approach elected officials with
this problem. Perhaps it is true, as U.S. Senator and Presidential
candidate Barry Goldwater once asserted that "extremism in the defense
of liberty is no vice." However, lawlessness in the defense against
terrorism is no virtue.
References:
Briginshaw, David. "Terror Attack Calls For Cool Heads And Vigilance."
International Railway Journal XLIV, IV (April 2004): 1.
Krages, Bert. The Photographer's Right - A Downloadable Flyer.
http://www.krages.com/phoright.htm
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