Criminalizing Photography

Comments at: http://lens.blogs.nytimes.com/2012/08/14/criminalizing-photography/?smid=tw-nytimes


August 14, 2012, 5:00 AM19 Comments
Criminalizing Photography
By JAMES ESTRIN

Mickey H. Osterreicher is the general counsel for the National Press Photographers Association and edits the organization’s Advocacy Committee blog. He spoke with James Estrin. Their conversation has been edited.

Q.
It seems like photographing in public is becoming a crime.

A.
Literally every day, someone is being arrested for doing nothing more than taking a photograph in a public place. It makes no sense to me. Photography is an expression of free speech.

Since 9/11, there’s been an incredible number of incidents where photographers are being interfered with and arrested for doing nothing other than taking pictures or recording video in public places.

It’s not just news photographers who should be concerned with this. I think every citizen should be concerned. Tourists taking pictures are being told by police, security guards and sometimes other citizens, “Sorry, you can’t take a picture here.” When asked why, they say, “Well, don’t you remember 9/11?”

I remember it quite well, but what does that have do to with taking a picture in public? It seems like the war on terrorism has somehow morphed into an assault on photography.

Q.
What’s caused this?

A.
It’s been a perfect storm. There’s 9/11, and now photojournalists who traditionally worked for newspapers are losing their jobs and becoming freelancers who may not have the backing of their news organizations. You have Occupy Wall Street, where police didn’t want some of their actions to be photographed. And now everybody with a cellphone is capable of recording very high-quality images. And everyone has the ability to upload and share them almost instantly. There is no news cycle — it’s 24/7 with unlimited bandwidth.

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Q.
When did you start doing this work?

A.
Well, I was originally a still newspaper photographer for 10 years at the Buffalo Courier-Express, and they went out of business in 1982. I made the transition to television and worked for the ABC affiliate in Buffalo, N.Y., for 22 years. While I was there, in the ’90s, the reporter I worked with got in the car one day and said, “I think I’m going to law school,” and I said, “You know, I always thought about law school.” And so we went together. We worked from 2:30 to 11, and we went to law school during the day and raced to get to work. In 1998, I graduated from law school, and in ’99, I got admitted to the bar.

I’d been in the N.P.P.A. ever since 1973. I was asked in 2005 to work as an attorney for the N.P.P.A., which I was thrilled to do. Photography was a profession that I loved. This was my way of paying back.

In 1946, N.P.P.A. was formed to give a voice to photographers, and I think now more than ever we need that — not just press photographers but anybody who takes a picture anywhere.

Q.
What does a professional photographer need to know about their right to photograph?

A.
If you’re out in public, you can take pictures. And you can report to your heart’s content. The problem is whether they know their rights or don’t know their rights and are willing to assert their rights.

Now, when I say that, that doesn’t mean that you can get up within two inches of a working police officer and stick your camera in their face. One of the things I prided myself on when I was a photojournalist was not affecting the situation. You want to be invisible. You get in, you get out, nobody gets hurt. You do your job, and that’s what your main responsibility is. It’s not to become the news story. Be respectful, be polite, act professional.

But even in certain cases when photographers have carried around the law and shown it to police officers and law enforcement, it hasn’t mattered.


Dennis Floss, courtesy of Mickey H. Osterreicher
Mickey Osterreicher, on assignment for Time magazine at the Love Canal in Niagara Falls, N.Y.
Unfortunately, a lot of officers will say “because I said so.” It works for your mother, but it doesn’t really work for police. They have to be enforcing a certain law, and they can’t just make it up.

If you’re stopped on the street, stay calm. Be reasonable, be cooperative — as cooperative as you can. By cooperative, I don’t mean you have to show them your pictures when they ask. If you’re not getting anywhere ask to speak to a supervisor.

When all else fails, unless you’re willing to be arrested, you have to consider trying a different approach. Walk away, and see if you can get another angle. As news photographers, you’re there to break a new story, the last thing you want to do is stand around arguing with somebody while the images you want to take disappear.

For the general public, just be aware that this may happen to you. Tell them, “I’m on a public street, this is America, I can take pictures.”

We look at the images that come out of Syria and Libya where people risk their lives in order to get images out. Most of those images that we’ve seen are coming from citizens with their cellphones. They risk their lives, and we consider those efforts heroic. And yet in this country, somebody doing the very same thing is considered suspect. I have a real problem with that.

Q.
So the law is supposed to be, anywhere the public can go, the press can go, at least?

A.
The press may not have any greater right than the public, but they certainly have no less right than the public. And unfortunately we’re finding that that is not the case anymore. When you’re identified as being a member of the press, you are often restricted from doing your job.

What we’re seeing is photographers being charged with disorderly conduct, trespass and obstruction of governmental administration for doing their job. I call it the catch and release program. Almost always the D.A. will drop the charges immediately. But in the meantime, the police have managed to stop the person from photographing.

Q.
Most people don’t know that it’s legal to take a photo on the street without asking people. People often say to me while I’m shooting “you have to ask my permission.” What exactly is the law on that?

A.
If you’re in public, you have no reasonable expectation of privacy. That’s the difference between what is public and what is private. It’s the reason that all those security cameras that are on every city street are allowed to photograph us, because when we’re out in public we have no reasonable expectation of privacy.

“…It led to an exchange where the sheriff said, ‘We’ll get to determine the aesthetic value of the photographs.’ Police determining what is and what isn’t a picture? I don’t think so — I don’t think that’s their job.”
There’s a big difference of taking a picture and the use of a picture. If I take a picture of someone on the street they don’t really have a right to tell me that I can’t take their picture. They can ask nicely, “Hey, would you mind not taking my picture?” But they can’t enforce it, because there isn’t a law.

Now, if I use your picture in an advertisement or use your picture with story about obese people or smoking in America? That’s different. But that’s a whole other issue then the taking of the picture.

Q.
A lot of nonprofessionals have walked by federal buildings and been stepped for taking a snapshot.

A.
Absolutely. If it’s in public view and you’re on public property, then you’re allowed to take a picture of it.

There are permutations. I tell photographers, if you’re standing on a public sidewalk and you’re taking a picture with a 50-millimeter lens, and it’s a wide shot of the city street, that’s fine. If you now put on an 800-millimeter lens and take a picture through somebody’s window, you’ve now invaded their privacy and that could be a civil tort.

Q.
After photographers were stopped from photographing the police clearing Occupy Wall Street protestors from Zuccotti Park, you and representatives of a media coalition including The Times, met with the police commissioner Ray Kelly. What happened at that meeting?

A.
It was on Nov. 23. I asked the commissioner if he would reissue the “finest message” from 1999 that dealt with the police cooperating with the press. He did that. It was read at 10 consecutive roll calls in every single station house and precinct.

Q.
What did the message say?

A.
It said that the police shall cooperate with the press to the greatest extent possible.

Q.
So that’s good.

A.
It was a wonderful thing — but that was last November, and now it’s August.

Unfortunately, the very next day on Thanksgiving day, we had two more incidents. One was a Daily News photographer, covering a fatal fire in Brooklyn, who was interfered with by police and had his press credentials pulled, and another one with another Daily News photographer who was told — by a deputy inspector no less — that the only place he could shoot pictures of the Thanksgiving Day parade was from a press pen. While tens of thousands of other people with cameras were taking pictures from wherever they wanted.

So we’ve been trying to work with the New York City Police Department in implementing it. Issuing that “finest message” was a good start, but as we all know a piece of paper is just a piece of paper unless there’s proper training and — where appropriate — discipline. I was very disappointed to see what happened with Robert Stolarik the other day when, again, he was interfered with and arrested for doing nothing more than taking pictures on a city street which is his right.

[Mr. Osterreicher reported on the N.P.P.A. Advocacy Committee blog that Mr. Stolarik's camera equipment were returned to him by the police on Monday.]

One of the other things that came out of the meeting was that they said, anytime there’s a problem, you send us an e-mail or give us a call and let us know what’s going on. And I’ve been doing that. And some of them I have had responses to, and other times I have had no responses.

Q.
And so you sent a letter to the deputy commissioner for public information after the Stolarik incident?

A.
Yes, I sent the letter specifically to Paul Browne of D.C.P.I., which was a lengthy letter, but I also wrote a letter to the editor to The New York Times that was printed on Friday. I said that this incident with Stolarik is a step back in police press relations and that we urged them to work with us.

Q.
How many other incidents have you been involved in since since the “finest message” was read at the police precincts?

A.
I think there’s been probably a half a dozen, but you know we are not just talking about New York. I deal with similar incidents around the country.

“Unfortunately, nowadays wearing a press credential is almost like wearing a scarlet ‘A.’ “
We have the same problem in Los Angeles. A photographer in Los Angeles was taking pictures at an oil refinery and got stopped. Fortunately, this officer just let him go after questioning him for awhile, but it led to an exchange where the sheriff said, “We’ll get to determine the aesthetic value of the photographs.” Police determining what is and what isn’t a picture? I don’t think so — I don’t think that’s their job.

Q.
You’ve been doing training?

A.
Yes. I’ve been a reserve deputy in Erie county sheriff’s department since 1976, so I understand this issue from both sides.

For the Republican and Democratic conventions I recently did training sessions in Tampa and Charlotte with the local police departments on how to interact with photographers and what the laws are. I’ll be at the conventions with the Reporters Committee for Freedom of the Press and available to help photographers with any issues. We certainly don’t want a repeat of Denver and St. Paul.

I was in Chicago during the NATO summit, and was watching the interactions between the police and the press and pretty much anyone with a camera. I think, they showed an incredible amount of restraint in allowing everyone to take pictures, both still and video, whether you were credentialed or not.

Q.
There are a couple photographers who might disagree.

A.
Yes there were a few unfortunate incidents where Scott Olson with Getty was hit over the head with a riot baton and I spoke to him, and Joshua Lott, a Getty photographer, was also arrested. But at least the system we had set up with the Reporters Committee for Freedom of the Press, and the hotline worked well, because we got a call right after he was arrested, and I contacted the Chicago police along with one of the lawyers working with the Reporters Committee.

Even though Joshua Lott was initially charged with mob action, which is a fairly serious charge, when the police took a closer look at it — which they did — they reduced it down to reckless conduct, which was a misdemeanor.

Q.
Why is this happening everywhere?

A.
In New York, it’s not because they don’t have good guidelines. Clearly if the officers followed the finest message, we wouldn’t be having any problems. Other cities don’t have those guidelines, but certainly in New York, it appears that officers need more training than they’re getting. They also need to have some teeth, so when officers violate those guidelines, disciplinary action is taken. It is very rare to have that happen.

It did, happen in a previous incident with your photographer Robert Stolarik who was covering Occupy Wall Street, and somebody else fortunately was videotaping this. An officer stood in front of him and continued to get in his way. Everywhere Stolarik went, the officer would block him. It’s our understanding that the officer eventually got some form of discipline for that.

I believe that the problem is it’s ingrained in the police culture. The idea of serve and protect has somehow changed, for some officers, to include protecting the public from being photographed.

Many times officers are pushing and shoving, and our photographers are told, “If that was your mother, would you want to see her picture in the paper?”

That’s not the officer’s job. The officer’s job is to protect and serve, to make sure the public is safe, secure the scene, collect evidence. It’s not to decide what pictures should and shouldn’t be taken on the street.

There are officers who think it’s their job to protect other officers from being photographed. They’re absolutely wrong. That not what their function is.

Just as a news photographer’s job isn’t to direct traffic, or collect evidence at a scene, or do any of the things that law enforcement does.

Q.
Can you explain to me how this is changed from 20 years ago?

A.
I think it was very different 20 years ago. I think press photographers had more access, I think credentials were respected. Unfortunately, nowadays wearing a press credential is almost like wearing a scarlet “A.”

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Q & A, James Estrin, Joshua Lott, Legal issues, Mickey H. Osterreicher, National Press Photographers Association, NYPD, Occupy Wall Street, Reporter's Committee for Freedom of the Press, Robert Stolarik, Scott Olson
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Bob HillsNew Hope, PA
In 1967 I had the good fortune to visit the then USSR with a group of science teachers. The Khrushchev Thaw was in full swing. My snapshots of armed soldiers at airports and prisons, for example, were unremarked upon, even by the ever present "Intourist/KGB?" tour guide. I was surprised and pleased by the freedom to take pictures seemingly of anything. It is therefore of great disappointment that the freedom of speech in the United States is devolving towards that of a police state less free than the old CCCP.
After all, it is the day to day SENSE of freedom that is just if not more important as any court-enforced freedom.
Aug. 14, 2012 at 11:52 a.m.

rickipediaVermont
I was approached on the sidewalk in front of Carnegie Hall by a security guard and told I could not take photos while under the marquee, even if the photos were of the street because "it's Carnegie Hall property." My response: "Show me the sign or law prohibiting me from doing so." The guard walked off. Moments later, a female employee of Carnegie came out and told me the same thing. I ignored her, and will continue to shoot whenever something catches my eye.
Aug. 14, 2012 at 11:51 a.m.

Paula C.Montana
It isn't just big cities. It happens in small town Montana too. Small town cops don't see much irony in arguing about photographs while a municipal security camera clicks away. Post 9/11 logic and common sense were trampled by fear along with our right as Americans to move freely in a democratic society. We can shoot our guns willy nilly but not our cameras.
Aug. 14, 2012 at 11:51 a.m.

winslowvsanta rosa, calif.
I have been stopped from walking into a NJ mall with a camera openly hanging around my neck; I didn't want to leave it in the car. The mall guard told me I had to leave, no cameras allowed. But what about all the people with cameras in their cellphones?, I asked. This never seemed to have occurred to him, but still, he insisted I stay out of his mall.

Once, I was shooting photos in Coney Island and a man was upset that I had pointed my camera at him. He became very abusive and grabbed me, threatening me with violence and telling me how wrong it was, etc. etc. I held my ground, kept ahold of my camera close to my body, and shouted for the police. An officer soon came and told the man I had every right to make photos in the street, there was no law being broken, etc. The man let go of me and went away. I thanked the officer.

I do believe that when I was a child growing up in Brooklyn Heights, there were signs posted on the Manhattan and Brooklyn Bridges warning people not to take photos. Could that be? Perhaps because of the Brooklyn Navy Yard? Were these signs a WW2 or Cold War artifact? I also seem to recall No Photo signs in the subway stations. I have long been trying to confirm these memories.
Aug. 14, 2012 at 11:50 a.m.

MikUSA
Can a citizen be arrested for sketching a picture or writing about a place or event in public? Nope. Taking a photograph is the same free speech. Just different technology.
The comment about public and the mostly many private security cameras is also informative. For people who don’t like their picture taken, we have some news for you;
Expectation of privacy in public never did exist. Hence why we call it “public”.
Aug. 14, 2012 at 11:50 a.m.

SKVNYC
I think every public employee, including politicians and police, should have to take an oath saying they allow the public to photograph and videotape them in the performance of their duties. They shouldn't be doing what they don't want the public to see.
Aug. 14, 2012 at 11:47 a.m.

Jay LNYC
Question: I tried to take pictures of the Pain Quotidien in Central Park -- the one near the north side of the Sheep Meadow. The employee there came out and told me that I was not allowed to do so. I was standing in the Park, not in the restaurant, taking pictures of the facade. Could he have been correct?
Aug. 14, 2012 at 10:43 a.m.

JDHChicago, IL
Thank you for bringing this troubling development to everyone's attention. I have often encountered people telling me not to take pictures or that they would call police if I didn't stop taking pictures. Why? The only answer I'd get was "Because!". I guess it gives people a sense of power after watching helplessly as the 9/11 disaster unfolded. "I couldn't stop those terrorists then but I sure will do it now." Even the police, companies and government officials join the ever-growing chorus of censorship. That's what it is in the end.
Just recently, I was taking pictures of a convenience store, I guess I liked the sign and colors. I was standing on the sidewalk, well within my rights, when the store manager came barging out, waving his finger and demanding an explanation. I went ahead and gave him the biggest compliment on his store. He proceeded to recite the entire history of his family and we parted friends. I guess that approach works, too.
Aug. 14, 2012 at 10:43 a.m.

clearlookStamford, CT
Since 9/11 NY City has become a "police state." It makes me not want to go there any more and I've been going there all my life. What a shame.
Aug. 14, 2012 at 10:33 a.m.RECOMMENDED3

Paul CometX NYCNew York
This is a very, very important discussion. I was a free-lancer in the sixties, and even in the most riotous situations I was not interfered with - and I didn't even carry a press pass. Now, the mantra of "9/11" seems to have empowered the police to act beyond the law with impunity.

A police officer who interferes with public photography is like a delinquent who sprays graffiti - if he gets away with it, it emboldens him to take other illegal actions. The difference is that the delinquent is not threatening our precious civil liberties as citizens of a free society.

It is up to the media in all its forms to make police misbehavior a prominent, ongoing issue.
Aug. 14, 2012 at 10:32 a.m.RECOMMENDED6

Alessandro ShinodaSao Paulo - Brazil
We have that same problem down here in Brazil. Unfortunately not only police officers, but also security guys from commercial buildings, shopping malls and condos, think that we cannot photograph from the side walk.
Aug. 14, 2012 at 10:32 a.m.RECOMMENDED1

webzilloidsanta fe
Excellent resources for photographers concerned about their rights is here:
http://www.krages.com/phoright.htm

and here:

http://www.aclu.org/free-speech/know-your-rights-photographers
Aug. 14, 2012 at 10:31 a.m.RECOMMENDED2

Jeff HershkowitzNevada
At the risk of sounding flippant, are you or anyone else surprised, given the constant and gradual erosion of personal and civil liberties in this country? The country is fed a steady diet of fear while those in power use that as an excuse to restrict everything we do in the interest of public safety and security. We as a nation have empowered this. Then we wake up one day to find we have little if any rights or freedom, only "safety and security". The young have little perspective so it seems normal to them. In a way it goes hand-in-hand with the left demanding that government provide social and financial welfare to all. One cannot have both complete security and liberty. I fear that the only way to recover much of our lost liberties and freedom will be to follow Thomas Jefferson's lament, and it will be bloody and painful.
Aug. 14, 2012 at 10:30 a.m.RECOMMENDED4

barrypuget sound
It cost Los Angeles 30 - 40 million dollars to beat up Rodney King, go to court with bad excuses, and then pay the judgement. In order to avoid a repeat, which one of these actions would an enlightened ciy forego? Surely not the beating.
Aug. 14, 2012 at 10:30 a.m.RECOMMENDED2

JimNew York City
A modest proposal: if a police officer asks someone to stop taking photographs, the officer should be required to fill out a form, on the spot, and give a copy to the photographer. The threat of paperwork would be more effective than the threat of discipline, and also would provide a basis for the photographer to file a complaint if the request was not justified.
Aug. 14, 2012 at 10:30 a.m.RECOMMENDED1

HappyNew York
So pathetic! I visited the Soviet Union in 1974, and couldn't get over the restrictions on photography.
Seems that we are heading in the same direction.
Aug. 14, 2012 at 10:29 a.m.RECOMMENDED4

Act upNYC
The increasingly restrictiveness of the police regarding press and citizen photography is more related to Rodney King than "September 11th". Officers want to act with impunity and the high quality cell phone photos and video threaten that. They protect and serve themselves first.
Aug. 14, 2012 at 10:29 a.m.RECOMMENDED3

Greg CeoSavannah, GA
Some of my photography students are having trouble here in Savannah, GA, being stopped by law enforcement when photographing. They are standing on public property photographing the river (which then will sometimes have container ships in the background of their images) The students are not sure as to which branch of law enforcement it is that is stopping them. I have informed the students of their rights via the ACLU website (which has wonderful guidelines on photography and your rights as a US citizen.) Still, the students are being threatened with being put on terrorism "Watch Lists" which they are told would make it difficult for them to travel. Under this threat, they have been asked to delete their images. Even if the students know their rights, getting hassled and potentially getting arrested is no fun at all. I'm sure it would be a "Catch and release" situation, but law enforcement is surely overstepping at times here in Savannah, GA and the threat of being arrested has scared some students into deleting their images.
Aug. 14, 2012 at 10:29 a.m.RECOMMENDED4

macduff15Salem, Oregon
The police forces that are supposed to protect us are a greater threat to our civil society than any foreign terrorist. This is just another instance of police officers being able to invent laws under the cover of their badge that we have no recourse from at the time. I would not paint every police officer with that brush, to be sure. But God save us from the schoolyard bully who grew up and became sworn, because that's who this article is talking about.
Aug. 14, 2012 at 10:28 a.m.RECOMMENDED2

Navy retiredBethesda, Maryland
Photography has become a wonderful hobby for me over the past 7 years and my wife and I very much enjoy photo expeditions to all sorts of places. I am offended when I think that the government, which is able to photograph me in public places, then violates the First Amendment by censoring photography by private individuals or the press in those same public places. The police, as an arm of government, have no right to tell anyone they cannot exercise their First Amendment rights in a peaceable fashion. The 9/11 issue has become a mantra for so many -- to paraphrase Benjamin Franklin (who, if he lived today, would likely be an avid photographer), "They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty or safety."
Aug. 14, 2012 at 10:28 a.m.RECOMMENDED5

BDNew York
Yes things have changed since 20 years ago but the biggest change is that technological changes have led to almost no editing by photographers. There is no one that has to approve publishing an image on a website. There are unlimited photos to be taken because it is all digital.

20 years ago there was an editor at a newspaper and photographers understood that their access depended on their discretion. Now they want all the rights with none of the responsibility.

I don't like living in a world where someone can easily post images of me or my children doing things that might be embarrassing or funny as a photo. I want to go to the Farmer's market and shop without having to wonder if my son has berry juice on his face and is being photographed for some publication.

Maybe a little more respect for the right of people to live their lives on the street without being photographed for your benefit would go a long way here. I also think that the paparazzi phenomena has really eroded the moral supremacy of press photographers in general. Too many of your colleagues are making a living by trying to ruin people's lives

Even the police actions described above, I have to agree. I wouldn't want my mother's picture taken if she was on the ground injured after being hit by a taxi? What civil good is advanced by having that picture published in the paper? None. Sure it sells papers but at the cost of a victim.
Aug. 14, 2012 at 10:28 a.m.

MikeNYC
Here's the law: Anything that's out there to be seen and heard in public or places of public assembly may be photographed and recorded using natural, normal means. Planting photographic or sound bugs in private places would require court-ordered warrants.

Our Constitution remains applicable, in full force and effect, until further notice.
Aug. 14, 2012 at 10:27 a.m.RECOMMENDED6

Michele G.Montrose, PA
This is a disturbing article. Although I'm not a professional photographer or a member of the press, it reminds me of my experiences in the USSR in 1982. As a tourist, I was constantly told, "You can't take a picture of that".
Aug. 14, 2012 at 10:27 a.m.RECOMMENDED3

Michael SWappingers Falls, NY
Verified
I recall some years after 9/11 being stopped by park rangers from taking a photo of my grandson feeding ducks in front of the Kenseco Dam in Westchester. Overhead there was a steady stream of small planes taking off and landing at Westchester County Airport - a far more useful and effective means of photography of dams and bridges for nefarious purposes - and besides detail measured photos of all dams and similar civil engineering projects are available online and detailed books of blueprint were published at the time the NYC water system was constructed.

Its just like posting a police car at the approach of a bridge or the nonsense at the airport; its security theater. Tell a low level employee they should stop photography and they will go to town with their unaccustomed powers. Everybody is supposed to be impressed with thee "tight" security and forget the borders are still porous and Homeland Security has failed to achieve total inspection of ship containers checking for radioactivity as mandated by law - they're late and probably will never achieve that critical element of protection because it interferes with business.
Aug. 14, 2012 at 9:40 a.m.RECOMMENDED13

Tim BSeattle
Verified
FLAG
This is a very troubling trend for photographers, though encouraging that some organizations are becoming involved and standing by photographers. My sense is that this is about police saving face, in the event of altercations. in the event an arrest is not going well. Even if provoked, the police are not supposed to be able to do anything they wish to a suspect, nor are they supposed to be able to use excessive force or intimidation.

Freedom of the press means just that and is a cornerstone of what this country was founded on.