Search

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 Works with the New Mexico Dept. of Homeland Security to Amend Its Policies Regarding Photography

March 12th, 2013 by and tagged , , , , , , , ,

The National Press Photographer’s Association (NPPA) recently worked with the New Mexico Department of Homeland Security (NMDHS) to revise policies regarding photography in its online Suspicious Activity Reports (SAR). NPPA General Counsel Mickey Osterreicher was initially alerted to the issue when NPPA member Amanda Emily wrote on the NPPA Facebook page on Feb. 19 about the issue: “If you ever visit New Mexico, don’t bother photographing “historic structures and national landmarks” among other subjects….it’s considered a suspicious worthy of reporting to their fusion center.” This is the original version of the NMDHS SAR policy.

Several NPPA members commented on Ms. Emily’s post, including Osterreicher, who on Feb. 20 sent an email to Mr. George Heidke, General Counsel for the NMDHS, about the NMDHS’s SAR forms. In that email Osterreicher recommended that NMDH modify their SAR to remove both the “Activity (photography) checkbox” as well as the “Q & A” answer directing that “You should immediately report people who photograph, videotape, sketch . . .” which immediately preceded that checkbox because both portions on the SAR form indicated that photography in general constituted a suspicious activity. Osterreicher then quoted from a “Report It Form” issued by the Spokane County Sheriff’s Office which describes the appropriate way to address photography in the context of a SAR, and which he also had a part in correcting in 2011:

“These activities are generally First Amendment-protected activities and should not be reported absent articulable facts and circumstances that support the suspicion that the behavior observed is not innocent, but rather reasonably indicative of criminal activity associated with terrorism or other crimes, including evidence of pre-operational planning related to terrorism. Race, ethnicity, national origin, or religious affiliation should not be considered as factors that create suspicion (although these factors may be used as specific suspect descriptions).”

In his email, Osterreicher also pointed to a FPS (Federal Protective Service) bulletin which recognizes the First Amendment rights of photographers to take photographs of federal buildings unless such activity gives rise to a reasonable concern of suspicious activity. He then said, “photography by itself is not a suspicious activity and is protected by the First Amendment.” “Unfortunately the reliance by law enforcement officers to question, detain and interfere with lawful activities by photographers under the guise of preventing terrorist activities has become a daily occurrence, ” he added. “The abridgement of a constitutionally protected activity because of that erroneous belief is only reinforced by your specific reference to photography as possibly being part of some sinister act.” Osterreicher concluded the email by again urging Mr. Heidke to consider amending the NMDHS SAR form to remove its references to photography.

In a not too surprising coincidence, world-reknowned photojournalist David Burnett also wrote to Robert McGee, Chief Information Officer for NMDHS, stating his concerns over “the potential for extremely negative backlash which the public might feel, based on the . . . guidelines such as they are outlined on your website.”  “Photography is not a crime,” he went on, adding “those of us who carry cameras on a daily basis have to deal with the increased sense of paranoia, and often ill-conceived reactions by much of the public over something as simple as taking a photograph of a historic landmark building, or a natural wonder.  In fact, let’s be honest, the world at large would hardly  know of any of the wonders of New Mexico were it not for the photographs which have become iconic in their own way, over the years.”

Burnett pointed out that “photography remains a passion for millions of Americans (and others), and the artistic expression through which we see the world with our cameras is unquestionably one of the great visual joys of our time.  I fear that in an attempt to rally public interest in protecting society at large, you may have put at risk something which provides a great deal of joy , and which no doubt through commerce and tourism, add a great deal of benefit to New Mexico,” concluding with a plea to “reconsider the manner in which you seek to engage the public re: ‘suspicious activity’  as we all want to live in a safe environment, but to do so at the cost of being suspected as ‘terrorists’ or ‘criminals’ for merely engaging our right to take photographs, is something which in the end does not properly serve the public at large.” Burnett also shared copied Osterreicher on his email.

NPPA is pleased to report that on March 6, Osterreicher received an email from Mr. Heidke which stated: “The Department has concluded its review of the SAR instructions and has posted new guidelines on its website. We appreciate your comments. Thank you.” “This incident serves as a reminder that everyone must remain vigilant to ensure that these types of postings are corrected to avoid the chilling effect they have on our First Amendment rights,” Osterreicher said. The communications between the two attorneys also show the ability of NPPA to contact and work with law enforcement and other government agencies in a positive, instructive manner to help improve relationships between photographers and those entities. NPPA encourages its members to communicate such issues as the NMDHS’s old SAR policy to Mr. Osterreicher so that the NPPA can continue its mission of advocating as the voice of visual journalists. The new NMDHS link can be found here and the new form here.

Posted in David Burnett, First Amendment, First Amendment rights, National Press Photographers Association, NPPA, photographers, Photographers' Rights, photojournalism, SAR, Suspicious Activity | 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 »

NPPA FIles Comments in Support of H.B. 3944 Amending the Criminal Provisions of the Illinois Wiretap Law

February 6th, 2012 by Mickey Osterreicher

The National Press Photographers Association (NPPA) has submitted comments to the Illinois General Assembly in support of House Bill 3944. Spoinsored by Rep. Elaine Nekritz, the proposed legislation (among other things) “amends the Illinois Criminal Code and exempts from an eavesdropping violation the recording of a peace officer who is performing a public duty in a public place and speaking at a volume audible to the unassisted human ear.” 

The current Illinois Wiretap Law makes it a felony (with a penalty of up to 15 years in jail) to audio record a police officer in public without consent regardless of whether a reasonable expectation of privacy exisited.

The NPPA is extremely concerned that the criminal penalties under the Illinois Eavesdropping Act, 720 ILCS 5/14 (“the Act”), as applied to the audio recording of police officers, has created a chilling effect upon free speech and a free press, particularly for photojournalists, who by the very nature of their profession must operate on the front lines of news, in the middle of sometimes highly charged situations.

NPPA joined in the amicus curiae brief in ACLU v. Alvarez, submitted by news organizations in support of the ACLU position seeking a declaratory judgment and a preliminary injunction against the application of the Act because it violates the First Amendment. Regardless of the Seventh Circuit decision in that case, which in any event may likely be appealed, NPPA is deeply concerned that daily coverage of news events, Occupy Chicago protests and the upcoming G-8 Summit may put those seeking to record these important matters of public concern at risk because of the continued enforcement of the Act. It especially disconcerting for us to think that foreign journalists covering the Summit meeting may be subject to arrest and prosecution for doing something they understandably believe to be a Constitutionally protected right throughout the United States.

In a time of technology and terrorism, citizens and photojournalists throughout the world have risked, and in some cases given their lives, to provide visual proof of governmental activities. Sadly, what is viewed as heroic abroad is often considered as suspect or criminal at home. It is therefore incumbent upon the 97th General Assembly of the State of Illinois to immediately enact H.B. 3944.

Posted in Access, broadcasting, Cameras, cell phone cameras, Chicago, Chicago Police, confiscated, DOJ, First Amendment, First Amendment rights, Fourth Amendment, Fourth Amendment rights, G-8 Summit, H.B. 3944, Illinois, Illinois General Assemby, National Press Photographers Association, News Photography, Newsgathering, NPPA, Photographers' Rights, photojournalism, Police, Public Photography, Reasonable Expectation of Privacy, Recording Police, Regulations limiting photography, Search and Seizure, Suspicious Activity, Terrorism, video cameras, Wiretap Law | No Comments »

NPPA Objects to PATCO Website Page Equating Photography with Terrorism

January 10th, 2012 by Alicia Calzada and tagged , , , ,

UPDATE: Although the offending language was removed (see below) in response to questions from a reporter for phillymag.com, DRPA spokesperson, Tim Ireland issued a follow-up statement, saying “amateur photographers and members of the general public may be stopped and asked who they are, what they’re doing and why they’re doing it.”

******On 1/18/12 Mickey H. Osterreicher sent a follow-up letter to DRPA President & CEO John J. Matheussen, asserting that photography by itself is not a suspicious activity.

****** As of 1/12/12 the language that NPPA complained about in the very first bullet point, which states, “Individuals observed filming or photographing passing trains, locomotives, freight cars, passenger cars, rail yard operations, tracks, bridges, tunnels, commuter rail trains, subway trains, transit trains, stations and platforms” has been removed from the PATCO website.

NPPA this week voiced its objection to the Port Authority Transit Corporation (PATCO) posting on its website that photography is a suspicious activity. In a strongly worded letter  to Delaware River Port Authority of Pennsylvania and New Jersey (DRPA) Chairman, the Hon. Tom Corbett, NPPA general counsel, Mickey H. Osterreicher, said “on behalf of NPPA and its members, I strongly object to PATCO’s depiction of photography as ‘suspicious’ or somehow being equated to terrorist activities.”  According to its website, DRPA “is a regional transportation agency serving the people of Southeastern Pennsylvania and Southern New Jersey.” It owns and operates the Benjamin Franklin, Walt Whitman, Commodore Barry, and Betsy Ross bridges. PATCO is a DRPA run subsidiary.

At issue is the language contained on the “Safety & Security” page of the PATCO website (http://www.ridepatco.org/safety/suspicious.html). Specifically, the wording at the top of that page entitled “What Should I Consider Suspicious?” on which the very first bullet point states, “Individuals observed filming or photographing passing trains, locomotives, freight cars, passenger cars, rail yard operations, tracks, bridges, tunnels, commuter rail trains, subway trains, transit trains, stations and platforms.”
NPPA has previously pointed out to numerous groups and law enforcement agencies that photography in all its forms (still, film, digital and video) are First Amendment-protected activities and should not be considered suspicious absent articulable facts and circumstances that support the suspicion that the behavior observed is not innocent, but rather reasonably indicative of criminal activity associated with terrorism or other crimes.

According to Osterreicher “the practice by government officials to question, detain and interfere with lawful behavior by photographers under the guise of preventing terrorist activities has become a daily occurrence and has resulted in a significant increase in the harassment and arrest of photographers nationwide.”  The letter went on to say that “the abridgement of a constitutionally protected form of expression because of that erroneous belief is only reinforced by your specific reference to photography as being part of some sinister act or pernicious activity.”  As in other instances NPPA is gravely concerned that by placing the words “individuals observed filming or photographing” at the top of PATCO’s list of activities the public should “consider suspicious” it has unnecessarily and unconstitutionally planted the seed that photography is a distinctly suspect pursuit. NPPA  takes the position that the PATCO web page, targeted at the general public, creates “a climate that chills free speech under the pretext of safety and security.”

To provide a little background into the often unknown and often times overlapping labyrinth of government agencies established to combat terrorism, the Information Sharing Environment (ISE) was established by the Intelligence Reform and Terrorism Prevention Act of 2004. According to its website “the Program Manager was granted government wide authority to plan for, oversee the implementation of, and manage the ISE. Click here to learn more about the Background and Authorities of the ISE.”  Language found in the ISE – Suspicious Activity Reporting (SAR) Criteria Guidance table lists and defines “photography” as “taking still or moving pictures of sensitive locations within a facility that have no apparent aesthetic value (e.g., personnel, security camera or guard locations, equipment, systems, emergency evacuation instructions), etc.” NPPA argues that PATCO has broadened even this misplaced definition into one that fails “as a reasonable time, place and manner restriction because it limits far more speech than is necessary to serve a substantial government interest.”

The letter referenced past NPPA advocacy efforts such as working with Amtrak to develop reasonable guidelines concerning photography for both the public and its employees (see: http://tinyurl.com/y8uzseh) and concluded with NPPA’s offer to work with PATCO “to help develop appropriate guidelines and implement proper training in order to avoid these situations” and that  PATCO remove “photography” from its list of suspicious activities.

Copies of the letter were sent to Sean Elliot, NPPA President; U.S. Department of Homeland Security (DHS) Secretary, Janet Napolitano; and Ed Barocas,  Legal Director of the NJ ACLU.

Posted in Access, Cameras, First Amendment, First Amendment rights, National Press Photographers Association, News Photography, NPPA, PATCO, photographers, Photographers' Rights, photojournalism, Public Photography, Regulations limiting photography, Suspicious Activity, Terrorism | 1 Comment »