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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 »