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9/29/2014 Know Your Rights: Photographers

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Know Your Rights: Photographers

(Updated July 2014)

Taking photographs of things that are plainly v isible from public spaces is a constitutional right – and that includes federal buildings, transportation facilities, and police and other government officials carry ing out their duties. Unfortunately , there is a widespread, continuing pattern of law enforcement officers ordering people to stop taking photographs from public places, and harassing, detaining and arresting those who fail to comply . Learn more »

Your rights as a photographer:

When in public spaces where y ou are lawfully present y ou have the right to photograph any thing that is in plain view. That includes pictures of federal buildings, transportation facilities, and police. Such photography is a form of public oversight over the government and is important in a free society . When y ou are on private property , the property owner m ay set rules about the taking of photographs. If y ou disobey the property owner’s rules, they can order y ou off their property (and have y ou arrested for trespassing if y ou do not comply ). Police officers m ay not confiscate or dem and to v iew y our digital photographs or v ideo without a warrant. The Supreme Court has ruled that police may not search y our cell phone when they arrest y ou, unless they get a warrant. Although the court did not specifically rule on whether law enforcement may search other electronic dev ices such as a standalone camera, the ACLU believes that the constitution broadly prevents warrantless searches of y our digital data. It is possible that courts may approve the temporary warrantless seizure of a camera in certain extreme “exigent” circumstances such as where necessary to save a life, or where police have a reasonable, good-faith belief that doing so is necessary to prevent the destruction of ev idence of a crime while they seek a warrant. Police m ay not delete y our photographs or v ideo under any circum stances. Officers have faced felony charges of ev idence tampering as well as obstruction and theft for taking a photographer’s memory card. Police officers m ay legitim ately order citizens to cease activities that are truly interfering with legitim ate law enforcem ent operations. Professional officers, however, realize that such operations are subject to public scrutiny , including by citizens photographing them. Note that the right to photograph does not give y ou a right to break any other laws. For example, if y ou are trespassing to take photographs, y ou may still be charged with trespass.

Using the ACLU’s “Know Y our Rights: Photographers” resource, HitRecord – a collaborative artist production company – produced an animated video about the right to photograph in public, featuring music by the Gregory Brothers and directed by actor Joseph Gordon-Levitt:

9/29/2014 Know Your Rights: Photographers

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If y ou are stopped or detained for taking photographs:

Alway s remain polite and never phy sically resist a police officer. If stopped for photography , the right question to ask is, “am I free to go?” If the officer say s no, then y ou are being detained, something that under the law an officer cannot do without reasonable suspicion that y ou have or are about to commit a crime or are in the process of doing so. Until y ou ask to leave, y our being stopped is considered voluntary under the law and is legal. If y ou are detained, politely ask what crime y ou are suspected of committing, and remind the officer that taking photographs is y our right under the First Amendment and does not constitute reasonable suspicion of criminal activ ity .

Special considerations when videotaping:

With regards to v ideotaping, there is an important legal distinction between a v isual photographic record (fully protected) and the audio portion of a v ideotape, which some states have tried to regulate under state wiretapping laws.

Such laws are generally intended to accomplish the important privacy -protecting goal of prohibiting audio “bugging” of private conversations. However, in nearly all cases audio recording the police is legal. In states that allow recording with the consent of just one party to the conversation, y ou can tape y our own interactions with officers without v iolating wiretap statutes (since y ou are one of the parties). In situations where y ou are an observer but not a part of the conversation, or in states where all parties to a conversation must consent to taping, the legality of taping will depend on whether the state’s prohibition on taping applies only when there is a reasonable expectation of privacy . But no state court has held that police officers performing their job in public have a reasonable expectation. The ACLU believes that laws that ban the taping of public officials’ public statements without their consent v iolate the First Amendment. A summary of state wiretapping laws can be found here.

Photography at the airport

Photography has also served as an important check on government power in the airline security context.

The Transportation Security Administration (TSA) acknowledges that photography is permitted in and around airline security checkpoints as long as y ou’re not interfering with the screening process. The TSA does ask that its security monitors not be photographed, though it is not clear whether they have any legal basis for such a restriction when the monitors are plainly v iewable by the traveling public.

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The TSA also warns that local or airport regulations may impose restrictions that the TSA does not. It is difficult to determine if any localities or airport authorities actually have such rules. If y ou are told y ou cannot take photographs in an airport y ou should ask what the legal authority for that rule is.

T he ACLU does not believe that restrictions on photography in the public areas of publicly operated airports are constitutional.

Published on American Civil Liberties Union (https://www.aclu.org) Source URL: https://www.aclu.org/free-speech/know-y our-rights-photographers