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Federal “Suspicious Activity” Reporting Initiative Threatens First Amendment Rights

September 20th, 2013 by and tagged , , , , , , , , , , , ,

“I observed a male nonchalantly taking numerous pictures inside a purple-line train.”

If this excerpt from a Federal “Tip and Lead” report out of Los Angeles doesn’t necessarily convince you that a crime is afoot then you’re probably not alone.  Nonetheless, that photographer, and many others like him, are now in a federal database under a plan to single out people who may be planning terrorist activity

The problem with the Nationwide Suspicious Activity Reporting Initiative (SARI) is that many of the activities it targets seem well, unsuspicious.  Worse yet, many of those questioned under the program were engaging in activities protected by the First Amendment.  Despite revisions to try to improve the program, people are still being added to the database who appear to have been doing nothing wrong.  The offense of a man recently added to the database: being “very unfriendly.”  Another was reported for buying a large quantity of cigarettes.  Both individuals were of Middle Eastern decent.  While the language initiative specifically prohibits racial profiling, a cursory investigation of what files are available suggests people are occasionally targeted for their race.   The measure also appears to have the effect, intended or otherwise, of targeting photographers in particular.

Today, in a continued effort to raise awareness of the program and improve its operational standards, the ACLU released a series of the federally collected reports online.  The NPPA joined the ACLU and 25 other organizations in a letter demanding reform. The groups also held a press conference in San Francisco addressing the impact of Suspicious Activity Reporting (“SAR”).

One of the central issues with the SAR initiative stems from confusion over what behavior falls within the programs purview.  The 2009 revised standard for the Director of National Intelligence Information Sharing Environment (ISE), one of a pair of programs that make up the initiative, defines suspicious behavior as observable actions “reasonably indicative of pre-operational planning related to terrorism or other criminal activity.”  Further, the revision makes clear that “the same constitutional standards that apply when conducting ordinary criminal investigations also apply to local law enforcement and homeland security officers conducting SAR inquiries.”  The media groups applauded this as an improvement over previous versions of the program, but note that “the failure to clearly state that ISE policy did not authorize the collection, retention or dissemination of personally identifiable information in violation of federal regulations . . . has led to confusion and abuse.”

In addition, The FBI’s eGuardian program, the other arm of the initiative, does not meet the higher standards of the ISE.  The continued reporting of non-threatening behavior suggests that this disjoint is one of the causes of the problem.

Today’s letter also observed that “Based on the SARs obtained thus far, photography and videography are frequently reported without additional facts that render these constitutionally-protected activities inherently suspicious. This reporting trend matches anecdotal reports from photographers who frequently complain that they are not only detained and questioned, but are also prevented from taking photographs and video and deprived of their equipment by police.”

The NPPA has been involved with dozens of similar incidents.  They are troublingly common, even without a federal program that enables, if not encourages their occurrence. “As part of the ‘See Something Say Something Program’ the NPPA is deeply concerned that these policies create an unnecessary climate of fear and suspicion throughout the country under the guise of safety and security for otherwise First Amendment protected activity,” said NPPA general counsel Mickey Osterreicher.

Among the reforms suggested in today’s letter, the groups recommended the government “[re]move photography and other activities clearly protected by the First Amendment from inclusion in lists of SAR categories or other guidance criteria to prevent the unlawful stops, detention, and harassment of photographers, videographers, and journalists.”

Such a revision would be a step in the right direction to ensuring valuable First Amendment activities are not illegally obstructed, and that it’s the people who are monitoring the government, and not the other way around.

Posted in Access, ACLU, California, cell phone cameras, Department of Justice, DOJ, First Amendment, First Amendment rights, National Press Photographers Association, News Photography, Newsgathering, NPPA, photographers, Photographers' Rights, photojournalism, Police, Public Photography, Recording, SAR, Street Photography, Suspicious Activity, video cameras, Visual Journalists | No Comments »

NPPA Files Joint Brief With RCFP & Other News Media Groups Supporting Right To Photograph Government Horse Roundup

September 13th, 2013 by and tagged , , , , , , , , , ,

Today the NPPA, along with the Reporters Committee for Freedom of the Press and supported by other news media organizations, filed a legal brief in support of a photojournalist’s claim of a right to access wild horse roundups on federal land.  The Ninth Circuit Court of Appeals is set to again consider whether the Bureau of Land Management (BLM) violated wild horse advocate Laura Leigh’s First Amendment rights when it  restricted her ability to photograph a 2010 horse roundup.

Leigh was trying to take pictures of BLM personnel corralling horses in the Nevada scrub when officials demanded she stay in designated public viewing areas.  The views from these locations were obstructed, and Leigh’s wasn’t able to get the pictures she needed, according to court documents.  Monitoring  how the government handles these roundups is important, as they involve removing a vulnerable species from it’s natural habitat.

In the days following the incident, Leigh sought an injunction to prevent the land bureau from restricting public access in the future.  Since then, the case has seen its share of legal wrangling.  The injunction has been alternatively granted and overturned on several occasions.  Now, the appellate court that sent the case back to the lower court last year is set to hear it again.

Though the case involves a relatively specific issue, it implicates a privilege of paramount importance: the right of the press and public to monitor the government.  More specifically, this case is a matter of the extent of access the press and public should be allowed in pursuing that privilege. “Government activities need press access and review, particularly where they occur in remote and deserted locations that the public is unlikely to frequent,” said  Jean-Paul Jassy of the law firm Bostwick & Jassy LLP who authored the brief along with Kevin L. Vick of the same firm, with input from Gregg P. Leslie, Legal Defense Director for the Reporters Committee for Freedom of the Press and Mickey H. Osterreicher, NPPA general counsel.

Like many First Amendment liberties, the right to access government activities is not absolute.  Certainly, some government actions involve serious danger or demand confidentiality to the extent that some restrictions are reasonable. The courts have developed a test for balancing the government’s interest in keeping people away from certain situations against the people’s right to know (usually provided by press coverage) in seeing what their government is doing.

Articulated in Press-Enter. Co. v. Superior Court of California for Riverside Cnty., 478 U.S. 1, 8,  the “experience and logic” test considers 1) whether the activity in question has historically been open to the press and general public and 2) whether public access plays a significant positive role in the function of that activity.  The stronger these questions are answered in the affirmative, the heavier the burden on the government to demonstrate an “overriding interest” that warrants restriction.  The government also must show that these restrictions are narrowly tailored to serve that interest.

In the case at hand, the lower court found that 1) wild horse roundups have traditionally been open to the public and 2) open access plays an important role in “protecting the interests of the overpopulated horses and news gathering for the benefit of the public.”

However, the court ruled in the government’s favor.  The U.S District Court judge found that the access restrictions were warranted by concerns over safety and effective horse gathering.   The NPPA and Reporters Committee for Freedom of the Press strongly disagree. Our objections were outlined in the brief to the Ninth Circuit:

“The court afforded too much discretion to the Government to decide whether observing the gathers was safe, without recognizing that journalists routinely – and critically – face far more dangerous situations on a regular basis without official interference or protection.  [T]he court below denied meaningful public and press access to the horse roundups, while sustaining unconstitutional restrictions on such access.”

The press groups contends that the restrictions as they stand do not allow meaningful access to the roundups.  Photographers simply cannot get adequate images from the locations they are relegated to.  Further, the government has not presented convincing evidence that the roundups are dangerous to the point that such restrictive locations are needed.

This is especially so, the brief notes, because viewing “large, remote operations like wild horse roundups is not an option for most people,  [and] the media act as public surrogates, conveying those images to a vast public audience and enabling the public to satisfy its civic duty in monitoring the government.”

“The BLM restrictions on access are very similar to those used to limit recording police activity in public places as well as being analogous to the right of access to courtroom proceedings,” said Mickey H. Osterreicher. “We also pointed out to the 9th Circuit in our argument and with an appendix of photographs, just how uniquely important and compelling visual images are to the newsgathering process,” he added. “We are hopeful that the Court will take judicial notice of that important distinction in our favor,” Osterreicher added.

Laura Leigh is represented by Gordon M. Cowan. His brief may be read here. The other news media organization that joined in the brief were: the American Society of News Editors, The Association of American Publishers, Inc., the First Amendment Coalition, Battle Born Media LLC, the Los Angeles Times, the Student Press Law Center, the National Press Club, National Public Radio, Inc., The Nevada Press Association, the Reno Gazette-Journal, The Seattle Times Co., Stephens Media LLC and the Society of Professional Journalists.

Posted in Access, First Amendment, First Amendment rights, National Press Photographers Association, News Photography, Newsgathering, NPPA, photographers, Photographers' Rights, photojournalism, Regulations limiting photography, Reporters Committee for Freedom of the Press | No Comments »

Senate Judiciary Committee passes the Free Flow of Information Act of 2013

September 12th, 2013 by Alicia Calzada and tagged , , , ,

photo (2)

photo by Mickey Osterreicher/ NPPA

 

A federal shield law edged closer to a reality today as a bill which would enact a federal reporter’s privilege, The Free Flow of Information Act of 2013, passed the Senate Judiciary Committee today to move forward to the Senate floor.

A critical part of today’s hearing was an amendment, offered by Senators Diane Feinstein and Richard Durbin, which helped expand the definition of who would be covered under the law. A coalition of media groups, of which NPPA is a member, assisted with the wording.

Under the bill, a person becomes a “covered journalist” by having certain elements of journalistic intent when obtaining the relevant information and by meeting the following criteria:

– Employment: If on the relevant date the person was working (either as a staffer or independent contractor) for an entity or service that disseminates news or information. A covered entity includes, among other things, a newspaper, wire service, news agency, news website, news program, magazine, print or electronic periodical, television or radio broadcast, or motion picture.

– Experience: If the person has worked for one of the entities described above for three consecutive months in the past five years, or for an entire year during the past twenty years.

– Safety net: If for some reason, a person believes that they should be covered but they don’t fall into any of the prior categories, a judge can decide that the person is entitled to the qualified privilege in the interest of justice. This gives the judge discretion to strike a balance between the need for a limited application of the privilege and the ever changing definition of journalist.

NPPA Attorney Mickey Osterreicher attended the hearing and was pleased with the outcome. “Trying to define who is a journalist is a vexing problem. If everyone is entitled to the privilege then upon further scrutiny no one will be entitled to it. On the other hand, if  given the state of journalism these days, the media coalition felt that the previous amendment was not inclusive enough and we could not support it.. We all now fully support the bill as amended and we encourage the full senate, as well as the house, to enact it.”

Photographers are expressly included in the definition of “covered journalist.” NPPA has been instrumental in ensuring that the bill covers visual journalists and NPPAs attorneys are satisfied that it does so.

The amendment can be found at this link:

http://www.judiciary.senate.gov/legislation/mediashield/Feinstein/ALB13767.pdf

 

After Passage Left to right:  Paul Boyle, NAA - Sophia Cope, NAA -Kurt Wimmer and Curtis LeGeyt, NAB,  Jeff Kosseff, Covington & Burling, Stephanie Martz, Senator Schumer's office Photo by Mickey Osterreicher.

After Passage Left to right: Paul Boyle, NAA – Sophia Cope, NAA, Kurt Wimmer and Curtis LeGeyt, NAB, Jeff Kosseff, Covington & Burling, Stephanie Martz, Senator Schumer’s office
Photo by Mickey Osterreicher.

 

 

Posted in First Amendment, Free Flow of Information Act, Legal, photojournalism, shield law | No Comments »