Bay Area Rapid Transit’s August shutdown of wireless service to squelch a demonstration in San Francisco raised anew questions about the use of tech in the face of authority. In this first installment in a series of FAQs, we discuss your rights when photographing police.
With the click of a button, anyone with a current cell phone has the ability to act as a check on the cops. Low-resolution photos and video taken on the fly may fall short of artistic standards, but they routinely exonerate the innocent, prove guilt, and even publicize police wrongdoing.
Though the gadgets people carry in their pockets are profoundly empowering, few phone and camera owners are fully aware of their rights–and this is especially true when it comes to capturing police on film. In fact, many law enforcement officials themselves are unclear about what is permissible.
Though by no means a comprehensive overview, here some basic rules of the road for catching police activity in your viewfinder.
Do you have the right to photograph police officers in public?
Yes. Taking pictures (still images, not video) of things that are visible in public spaces is a constitutional right guaranteed by the First Amendment. This includes photographing police officers and other law enforcement officials in public.
Can you take pictures while police officers are making an arrest or during civil unrest, such as a protest or riot?
It is completely within your rights to photograph police officers conducting their duties at an incident scene, including while making arrests. Police officers may legally ask you to stop only if your activities are impeding law enforcement activities.
Though the law is clear and courts have consistently upheld these rights, in numerous cases individuals have been illegally harassed, detained, or arrested for taking pictures of police officers (as well as other legally permissible subjects, such as transportation facilities and outside of federal buildings). Multimedia journalist Carlos Miller has documented many of these cases on his blog, Photography is Not a Crime.
Are there any public places where you can be arrested for taking photos of police? What about the airport?
Though officers may cite security or terrorist threats when confronted by a camera, only a few general exceptions to the rule really exist. For example, if you take images of specific areas at military installations, those images could pose a threat to national security and can legally be prohibited, according to Bert P. Krages II, an attorney and author of Legal Handbook for Photographers.
“Most attempts at restricting photography are done by lower-level security and law enforcement officials acting way beyond their authority. Note that neither the Patriot Act nor the Homeland Security Act have any provisions that restrict photography,” says Krages.
Photography is indeed legal at the airport, including at screening locations, despite reports of travelers being questioned or harassed for taking photos or video.
The Transportation Security Administration allows you to take pictures at checkpoints “as long as you’re not interfering with the screening process or slowing things down.” They also ask not to take pictures or video of the monitors, though the ACLU writes that “it is not clear whether they have any legal basis for such a restriction when the monitors are plainly viewable by the traveling public.”
Do rules for video differ from those for photography?
In general, yes. The visual portion of a video is fully protected under the First Amendment, and the same laws regarding photography apply. Things get murkier when it comes to the audio; the issue is currently being played out in hotly contested cases around the country. In several states people have been charged under wiretapping statutes for recording police officers without their consent.
Wiretapping or eavesdropping laws are designed to protect private conversations from being secretly recorded. In the majority of states, only one person must consent to the recording for it to be legal. In the twelve states where both parties must provide consent, some prosecutors have argued that filming a police officer without permission violates his or her rights, even if it occurs in a public place where there is no “reasonable expectation of privacy.”
The number of such cases has jumped in recent years, but in August the ACLU scored a major victory, in the First Circuit Court of Appeals, that will likely have significant implications for such suits around the country. On October 1, 2007, attorney Simon Glik whipped out his cell phone to record police officers making an arrest in Massachusetts. After an officer asked whether his film included audio, he was arrested for violating the state’s wiretap statute. In a unanimous ruling, the court ruled that Glik (backed by the ACLU) had a right to videotape the police carrying out their duties in public, and his arrest was therefore unconstitutional.
While other states have brought similar cases under old wiretapping laws, Illinois amended the law to make it explicitly illegal to record police officers on duty without their consent. The constitutionality of that law is currently being challenged in a federal court, in ACLU v. Alvarez.
Can a police officer confiscate your equipment or demand to see photographs/video that you have taken?
In certain circumstances. In general, unless the camera was used in a crime (such as child pornography or “upskirting”), police officers need a warrant to seize your equipment or to view pictures or video.
However, courts may approve the seizure of a camera in some instances where police have “reasonable, good-faith belief that it contains evidence of a crime by someone other than the police themselves (it is unsettled whether they still need a warrant to view them),” according to the ACLU.
Can police officers delete your photographs or video?
No. Though news reports indicate a disturbing trend of cops illegally deleting evidence, police officers may never erase your photographs or video.
What should you do if an officer stops you from taking pictures or shooting footage?
Just because you are within your rights, it doesn’t mean you won’t be questioned or harassed for shooting pictures or video of police officers.
In the event of a confrontation, stay calm and respectful. Don’t give the officer an opportunity to arrest you on unrelated charges such as obstruction of justice.
The ACLU, in its newly released guide “Know Your Rights: Photographers,” recommends asking the officer if you are free to leave. “If the officer says no, then you are being detained, something that under the law an officer cannot do without reasonable suspicion that you have or are about to commit a crime or are in the process of doing so. “
If you are detained, ask what crime you are under suspicion of committing. If the officer demands to view or confiscate your equipment, ask what legal basis he or she has to do so, and get the officer’s badge number.