You have the Right to Photograph in Public / by Alain Zarinelli

I have been hearing multiple stories about photographers being harassed by security guards and even law enforcement officers (LEOs), while taking photos of buildings, structures, or other items “in plain sight” from a public place. While it is understandable that private security guards may not be in full understanding of the law, we should expect LEOs to be. Unfortunately, that does not seem to always be the case… So, while I have seen previous blog posts about this issue, I will reiterate - especially since it’s a new year - and hopefully together, we can reduce the number of these unfortunate cases of ‘abuse of power.

As usual, keep in mind what I am saying here applies to the United States - rules in other jurisdictions/countries may vary - if you are not sure what is allowed, please do consult an attorney!

In summary of what comes next: If You Can See It You Can Photograph It!

• When in public spaces where you are lawfully present you have the right to photograph anything that is in plain view. That includes pictures of federal buildings, transportation facilities, and police.

• When you are on private property, the property owner may set rules about the taking of photographs. If you disobey the property owner’s rules, they can order you off their property (and have you arrested for trespassing if you do not comply).

• Police officers may not confiscate or demand to view your digital photographs or video without a warrant. The Supreme Court has ruled that police may not search your cell phone when they arrest you, unless they get a warrant. Although the court did not specifically rule on whether law enforcement may search other electronic devices such as a standalone camera, the ACLU believes that the constitution broadly prevents warrantless searches of your 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 evidence of a crime while they seek a warrant.

• Police may not delete your photographs or video under any circumstances.

• Police officers may legitimately order citizens to cease activities that are truly interfering with legitimate law enforcement operations.

• The right to photograph does not give you a right to break any other laws.

If you are stopped or detained for taking photographs:

• Always remain polite and never physically resist a police officer.

• If stopped for photography, the right question to ask is, “am I free to go?” If the officer says no, then you are being detained, something that under the law an officer cannot do without reasonable suspicion that you have or are about to commit a crime or are in the process of doing so. Until you ask to leave, your being stopped is considered voluntary under the law and is legal.

• If you are detained, politely ask what crime you are suspected of committing, and remind the officer that taking photographs is your right under the First Amendment and does not constitute reasonable suspicion of criminal activity.

Photography at the airport: The Transportation Security Administration (TSA) acknowledges that photography is permitted in and around airline security checkpoints as long as you’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 viewable by the traveling public. 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 you are told you cannot take photographs in an airport you should ask what the legal authority for that rule is.

With the above being said, be careful about publishing (or posting) photographs containing landmarks or people online - cf. my series on COPYRIGHT and Your Photos!

Check out this video by the ACLU and this article from the New York Times as well.

Source of the above:

For more information, also check out Your Rights and Remedies When Stopped or Confronted for Photography

Like my “COPYRIGHT and Your Photos” post, while not an attorney (and therefore none of the above should be construed as ‘legal advice’ - consult a qualified attorney to retain such!), I hope this post will help you understand your rights when photographing in public.

Let me know if you have questions, or if you disagree (or agree) with the above…

-Alain (