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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 Responds to LAPD “Special Order” that equates photography with criminal activity

    September 20th, 2012 by Alicia Calzada

    Once again, a law enforcement agency has instructed its officers to equate photography with terrorism, and the NPPA has responded. The NPPA was joined by a coalition of other media and photography organizations this week in a letter to Chief Charles Beck, of the Los Angeles Police Department, including the American Society of Media Photographers (ASMP), the Society of Professional Journalists (SPJ), the Los Angeles Times, the Radio Television Digital News Association (RTDNA), the Press Photographers Association of Greater Los Angeles (PPAGLA), the Society of Professional Journalists – Greater Los Angeles Chapter (SPJ-LA) and the Reporters Committee for Freedom of the Press (RCFP).

    The LAPD recently issued guidelines instructing their officers on “behavior/activity that may reveal a nexus to foreign or domestic terrorism.” Such behavior listed includes:

    “Taking pictures or videos of facilities/buildings, infrastructures, or protected sites in a manner that would arouse suspicion in a reasonable person.  Examples include taking pictures or videos of ingress/egress, delivery locations, personnel performing security functions (e.g., patrol, badge/vehicle checking), security-related equipment (e.g., perimeter fencing, security cameras), etc”

    In the letter, NPPA General Counsel, Mickey Osterreicher explained to Chief Beck:

    “Photography is protected by the First Amendment, subject only to reasonable time, place and manner restrictions. Unfortuately the reliance on policies such as the LAPD’s as the basis for law enforcement officers to question, detain and interfere with lawful activities by photographers under the guise of preventing terrotist activites has become a daily occurrence.”

    Osterreicher added that this “erroneous belief is only reinforced by these specific references to photography as possibly being part of some sinister act,” noting that the guidelines are “overly broad and vague and helps foster a climate of fear and suspicion”

    The NPPA offered to work with the law enforcement agency to help develop more reasonable policies regarding photography, asking that any reference to photography be removed from the guidelines.

     

    Posted in Cameras, First Amendment, Legal, National Press Photographers Association, News Photography, Newsgathering, photographers, Photographers' Rights, photojournalism, Police, Regulations limiting photography, Reporters Committee for Freedom of the Press, Street Photography, Suspicious Activity | No Comments »

    You and Your Camera as One – In Your Heart and In the Eyes of the Law

    July 12th, 2012 by Advocacy Intern and tagged , , , ,

    As assaults on photographers by citizens and the police have steadily increased in the past couple of years, it is important that you as a photographer know what your rights are if you are involved in one of these incidents.

    A recent example of these altercations comes out of New York, where actor Alec Baldwin shoved photographer Marcus Santos outside of the Marriage Bureau.  Santos later filed a complaint with the New York Police Department.  Alec Baldwin claims that he didn’t punch Santos, and in an interview with David Letterman Baldwin claims that he was in fact only hitting the camera, not the photographer.

    The truth of the matter is that Baldwin’s actions could have constituted battery without his ever laying a finger on Santos.  The rule in a majority of states in the country is that a person’s body need not be physically harmed to bring a claim of battery.  If unwanted and intentional contact occurs with something that is closely connected to the body such that it could be considered part of the plaintiff’s person, that contact can be treated as battery.

    This can include a camera in one’s hand or around one’s neck.  In fact in one case in Rhode Island, a woman was awarded damages for assault and battery after her mechanic, who she took a picture of when she didn’t like the job he did, admitted to placing his hand on the camera that she was holding in an attempt to stop her from taking his picture.  Any unwanted touching of your camera can give rise to a lawsuit just as if your body was assaulted.  The law accords you a right to personal space and that personal space can be disturbed through physical harm, or simply through touching deemed offensive or violative of personal dignity.

    If your camera is physically interfered with while in your possession, know that you may not only have the right to bring a civil suit for damages, but that the aggressor may also be criminally liable.

    As photographers we often consider our cameras as extensions of ourselves.  We should take comfort knowing the law is in agreement.

    Posted in Alec Baldwin, Assault on Photographers, Cameras, News Photography, Newsgathering, photographers, Photographers' Rights, Street Photography, video cameras | No Comments »

    Ninth Circuit: Photojournalist’s Access is a “Fundamental Constitutional Right”

    February 16th, 2012 by Alicia Calzada and tagged , , , , , , , , , , , ,

    In another victory for photographers, the NPPA is applauding a decision by the U.S. Court of Appeals for the Ninth Circuit which held that restrictions on a photojournalists’ access to a horse roundup by a federal agency may have violated her First Amendment rights. The appellate court stopped short of ruling that her rights were violated, but remanded the case to a lower court to reconsider the question based on a specific analysis.

    In the fall of 2010, photojournalist Laura Leigh set out to cover a wild horse round-up, conducted by the Bureau of Land Management (BLM) for the purposes of population control.  According to the ruling, while Leigh was covering the round-up, severe restrictions were imposed on her — she was escorted by armed guards and directed to stand in an area in which her view was obstructed. From the location she was forced to stand in, she was unable to observe or photograph the horses being moved or sorted and was unable to view whether or not the horses were injured. Leigh was also prohibited from standing in certain areas even though other members of the public were permitted in those areas.

    Leigh attempted to get an injunction and restraining order to provide her with unrestricted access but that request was denied by a federal court. The appellate court reversed the denial, holding that “courts have a duty to conduct a thorough and searching review of any attempt to restrict public access.”

    The ruling in Leigh vs. Salazar ordered the lower court to engage in a proper inquiry. Appellate courts generally do not make factual findings and the question of whether Leigh’s rights were violated is very fact specific and required more detailed information than was available to the appellate court.

    The court called the photographer’s access to take pictures a “fundamental constitutional right, which serves to ensure that the individual citizen can effectively participate in and contribute to our republican system of self government.” When there is a right of access, the government may only overcome that right by “demonstrating an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.” The National Press Photographers Association and the Reporter’s Committee for Freedom of the Press had filed an amicus brief in support of the photographer after the case was brought to our attention.

    Quoting founding father James Madison, the court noted that:

    “a popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both.”
    9 WRITINGS OF JAMES MADISON 103 (G. Hunt ed. 1910)

    Read the entire Ninth Circuit decision here: Decision021412 (PDF)

    Posted in Access, Cameras, Federal Court, First Amendment, First Amendment rights, Legal, National Press Photographers Association, NPPA, photographers, Photographers' Rights, photojournalism, Regulations limiting photography, Street Photography | No Comments »

    Update: NYPD to Remind Officers of Media’s Rights at 10 Consecutive Roll Calls

    November 23rd, 2011 by Alicia Calzada and tagged , , , , , , , , , , ,

    After meeting on Wednesday with several media attorneys, including NPPA general counsel Mickey Osterreicher, NYPD Commissioner Raymond Kelly ordered that a “Finest” message be disseminated reminding officers of their obligations to cooperate with the media. The message will be read at 10 consecutive roll calls citywide.

    “I’m pleased to see such a swift response from the Commissioner, of course this is just the first step in ensuring that this doesn’t happen again,” said Osterreicher. “We expect more to be done in the near future to help improve police-press relations which have devolved so significantly.”

    The Finest message highlights various guidelines that instruct police on how to deal with the media, including that “Members of the service will not interfere with the videotaping or the photographing of incidents in public places. Intentional interference such as blocking or obstructing cameras or harassing the photographer constitutes censorship. Working Press Cards clearly state the bearer ‘is entitled to cross police and fire lines.’ This right will be honored and access will not be denied.”

    The message also states: that “Members of the service who unreasonably interfere with media access to incidents or who intentionally prevent or obstruct the photographing or videotaping of news in public places will be subject to disciplinary action.”

    The meeting on Wednesday came after a letter was sent by media organizations on Monday complaining about the way police mishandled the media during last week’s “eviction” of Zuccotti Park, the home of months of Occupy Wall Street protests. Police officers arrested several journalists and also used force against several journalists during the raid.

    Read the entire contents of the planned  NYPD Finest message, as it was provided to the NPPA.

     

     

    Posted in Cameras, First Amendment, mass media, National Press Photographers Association, NPPA, NYPD, Photographers' Rights, photojournalism, Police, Public Photography, Recording Police, Street Photography, Uncategorized | No Comments »

    NPPA Seeks Repeal of D.C. Regulations Limiting Street Photography

    October 31st, 2011 by Mickey Osterreicher

    On Monday, October 31, 2011 NPPA general counsel, Mickey H. Osterreicher, sent a letter to the Hon. Irvin B. Nathan, Attorney General for the District of Columbia. The letter dealt with Police Regulations for the District of Columbia that affect photographers. In it referred to Article 31, Chapter 24, §§ 521 – 523, respectively entitled “Street Photography: Business Licenses,” “Street Photography: Individual Photographers” and “Street Photography: Requirements and Restrictions.” Of concern to the NPPA is the vague and overly broad language contained in these regulations that may be open to misinterpretation and abuse of discretion by police in their enforcement.

    Specifically, §24-521.1, states “No person, firm, or corporation shall engage in the business of taking photographs of any person or persons upon the streets, sidewalks, or other public spaces of the District of Columbia, for profit or gain, without first having obtained a license to do so from the Mayor (emphasis added).  Section 24-522.1, states “No individual not licensed under §521 shall take a photograph of any person or persons, for either direct or indirect profit or gain, upon any of the streets, sidewalks, or other public spaces of the District of Columbia persons, without first having obtained a license to do so from the Mayor as provided in this section” (emphasis added). Additionally, §24-523.3 states “While engaged in taking photographs, no person licensed under §521 or §522 of this chapter shall impede traffic as defined in the District of Columbia Traffic Acts; nor shall any photographer remain longer than five (5) minutes at any one (1) location on the streets, sidewalks, or other public spaces” (emphasis added).

    In the letter Osterreicher asserted that “these three vague and incrementally overly broad sections taken together could be interpreted to mean that any photographer taking a photograph of anything, be it a building, person or inanimate object for longer than five (5) minutes would be in violation of the regulations and subject to fine or arrest.” “We contend that this licensing scheme, based upon regulations that are facially inconsistent with the protections provided under the First Amendment, is unconstitutional,” he added.

    Osterreicher went on to say that “these facially defective regulations will only further contribute to the erroneous belief by law enforcement that public photography may be arbitrarily limited or curtailed.” He requested that these regulations be repealed immediately and in the alternative proposed to work with Attorney General Nathan “to draft revised language that would be more narrowly tailored to serve a substantial government interest as a reasonable time, place and manner restriction on commercial photography.”

    The NPPA is concerned, given the recent penchant for police to interfere with, harass and in many cases arrest photographers, that these infringing regulations would provide the police with unbridled discretion to abridge the rights of photographers covering such events as “Occupy Wall Street” or any situation involving “photography of any person(s)” or lasting longer than five (5) minutes in any one location.

    It is believed that these regulations were put in place to regulate photographers who (acting as something like to commercial street vendors) take photographs of others on a public street and then attempt to sell prints or copies to the subjects of those photos. None of the regulations actually define the term “street photography,” which has a more common definition as “a type of documentary photography” practiced by such world renowned photographers/photojournalists as Henri Cartier-Bresson, Alfred Eisenstaedt and Robert Frank to name a few.

    Posted in Access, business, D.C., District of Columbia, First Amendment, First Amendment rights, law, Legal, National Press Photographers Association, News Photography, NPPA, photographers, Photographers' Rights, photojournalism, Police, Public Photography, Regulations limiting photography, Street Photography | No Comments »