Downriver Dispatches

Rights of a Photographer

We live in a society today where there are cameras everywhere. Cameras are so prolific that we take them for granted. While teaching a political science class at a mid-west college I gave an assignment to the class that was a real wake up call for the majority of these undergrad students. The assignment was to look for all cameras that are in plain sight from when they leave the classroom until they returned home. They were astounded to learn that they were on surveillance cameras for almost the entire time. Why then would anyone be afraid of a citizen exercising their right to film anything they can see from a public space?

While eating a nice breakfast at the Spar in Cathlamet, it occurred to me that I was on camera before I entered the restaurant because of the bank next door having a camera outside in front of their ATM, and that was one of many that are in and around the town that are hidden in plain sight. As a correspondent and photographer for The Wahkiakum County Eagle, I have had a few encounters with people asking me what I am doing when taking photos. I have no problem telling anyone who asks, but at times I have been told not to take pictures because I do not have permission. I have been ordered by unauthorized personnel to stop filming the KM Mountain slide. When they were informed that I had a constitutional right to film from a public place, they backed off. This has been said numerous times by private citizens unaware of the constitutional right of taking photographs of things that are plainly visible from public spaces. This also includes federal buildings, transportation facilities, and police and other government officials carrying out their duties.

There has been a trend among 1st Amendment auditors who feel it is their responsibility to educate the public of their rights to film in public and they post their videos on social media. I have viewed many videos and learned a few things while some videos made me cringe. Watch for yourself and you can be the judge.

Regrettably, there is a current pattern of law enforcement officers ordering people to stop taking photographs from public places. This has included harassing, detaining and arresting those who fail to comply. The American Civil Liberties Union (ACLU), photographer's groups, 1st Amendment auditors, and others have been complaining about these incidents for years and they have been constantly winning in court. The continuing onslaught of incidents of illegal harassment of photographers and videographers by uninformed citizens and law enforcement officers makes it undeniable that the problem is still here.

The rights of the people to record the police are in reality a critical check and balance because it creates a visual record of an event that took place. The camera does not lie. Some of the most high-profile cases of police bad behavior have involved video and audio records. These incidents of harassment, etc., make it clear that respect for the right to photograph and record is not well-established within the law enforcement profession. Many of those involved in these incidents appear to be First Amendment activists who know their rights and are willing to stand up for them. Not everyone will stand up to police officers when harassed. It is unknown how many other Americans comply with unsubstantiated commands to stop photographing or recording because they are unclear of their rights or they are afraid to stand up for them.

Another part of the problem has been defined under the "Suspicious Activity Reporting.” This is a national system for the collection and distribution of information. In this system, law enforcement leaders at the federal, state and local level push officers on the job to investigate and report a wide range of legitimate, everyday activities as potentially suspicious and that includes taking pics or video. We have seen signs that read “See something, Say something.” Many of these programs actually suggest that photography is a sign of behavior of a terrorist. As a result the police respond accordingly. This notion has been dismissed as nonsense by security experts; nonetheless, it appears to be disturbingly strong.

For photographers and videographers who are harassed, the question arises as to whether they are being entered in government suspicious activity databases or watch lists. Their concern is whether and how such a listing might come back to disturb them. An investigation of Suspicious Activity Reports at the Center for Investigative Reporting found numerous individuals were reported to the FBI for taking photographs or video in the Mall of America. When anyone is in a public space where they are lawfully present, the Supreme Court of the United States has ruled that you cannot trespass the eyes. You have the right to photograph anything that is in plain view. That includes pictures of federal buildings, transportation facilities, and police. Photography is a form of public accountability of the government and is important in a free society.

Private property owners establish the rules about the taking of photographs inside their property. If you do not comply with the rules, the property owner can order you off their property and have you arrested for trespassing if you do not comply. The Supreme Court has ruled that police may not search your cell phone when they arrest you unless they get a warrant, and they can’t confiscate or demand to view your digital photographs or video without a warrant.

The Health Insurance Portability and Accountability Act (HIPPA) of 1996 established national criteria to safeguard individuals' medical records and other personal health information. This also applies to health plans, health care clearinghouses, and health care providers that conduct certain health care transactions electronically. Anytime photographers are asked to stop filming from a public place because they are filming private information then the obligation is on those who place the documents in public view and not the photographer.