Three documents written since 2004 relating to the “War on Photography”:
- The first was by security expert Bruce Schneier, who I’ve referenced before, and who has previously made much of the “security theater” that seems an apt description of various steps taken by the TSA and other agencies to prevent further terrorist acts on U.S. soil.
Schneier wrote a blog entry on June 5, 2008, entitled simply “The War on Photography,” and is one of the earlier cogent pieces to receive wide distribution, at least that I know of (it was published in The Guardian). Here, he calls the possibility of photographic reconnaissance to be a “movie-plot threat.” He belittles any likelihood of success, and tosses out statistics to support his point.
He cites one statistic I’ve heard before: photographers (only amateurs, not counting professionals) are reputed to take fifty billion photographs each year in the U.S. Let’s play with that number:
- Assume ten percent of that number are taken in public places (i.e., 90%, or 45 billion, are taken at birthday parties, weddings, office events, etc.);
- Then assume that ten percent of those include a landmark or building that might tempt terrorists (e.g., photos of the Washington Memorial, airport terminals, a U.S. courthouse, a major river bridge, etc.);
- That means 500 million photos. Now let’s suppose that in one percent of those the potential target is sufficiently prominent in the photo that someone might — just might — discern some information useful for planning a terrorist attack. That’s five million photos.
- Then let’s suppose that the average number of “suspect” photos taken by any given photographer is five. That means one million photographers;
- Authorities have said they want to uncover and prevent terrorism against U.S. targets. Suppose that exactly one of those photographers is a terrorist scouting his target. To achieve 100% safety, authorities must identify and stop all those one million photographers, and not only stop them, but stop them before they have taken a single photo or confiscate their cameras and/or memory cards if they’ve already taken photos. Even without considering the illegality of such steps, this little exercise shows the absurdity involved. Yet the war on photography goes on.
- The second article was Scott Bourne’s “Who Started the War on Photography,” and it appeared April 10, 2009, in the online photofocus. Scott proposes that Rudolf Giuliani started the War when NYC police arrested and held, some for days, photographers and photojournalists trying to document events, trauma, and activities in lower Manhattan in the hours and days immediately following 9/11:
Several freelancers as well as some credentialed photojournalists were jailed for days without charge or trial in the days immediately after September 11. New York Mayor at the time, Rudy Giuliani, seemed to declare war on photographers. He had the police block off more than a square mile surrounding the World Trade Center, calling it a crime scene. The Mayor ordered that anyone with a camera who even stopped or stood still near the area should be arrested and jailed.
The war on photography started on the day of those attacks at the World Trade Center so many September 11ths ago. Let’s stop using the tragedy of that day as an excuse to arrest, detain, question, harass, harm, deter, interfere with or injure photographers today who are merely trying to tell a story with their camera.
It belittles the sacrifice of all involved in the tragedy of nine-eleven.
Scott presents an interesting, and seemingly credible, argument and conclusion.
- Finally, an account found online (from a link in one of the comments in Schneier’s article — all the comments make for interesting reading) that discusses a 2004 encounter in my own back yard (St. Paul, MN, to be precise) that illustrates how early were to be found both illegal actions and wrong information regarding street photography: “Karl and I Get Our Rights Violated.” In the end, in part because the two photographers involved acceded to illegal demands by policemen (to stop their photography and hand over their film and erase CF cards), authorities got away with a suppression of street photography, thus reinforcing their perceived “right” to enforce a non-existent law.
- Speaking of comments to the Schneier article, one of them was especially well thought-through and deserves replication here in full. The author (“Andrew”) said that he trained private security guards, and then went on to say:
The law on photography is clear. As long as you are not photographing a U.S. government installation, you have every right to take photographs from public property, of that which is in public view. I’ve even used the photographer’s rights materials for guard training.
[S]ecurity guards have an awful lot to do. Post orders often exceed thirty pages of single-spaced instructions. It is not typical of the industry that guards are backed up by their management, rather the reverse. The guards are blamed for systemic issues created by the client and/or cost cutting. Answer: hire a replacement guard. Repeat until contract lost for poor performance.
[S]ome organizations (amusingly enough, public transit agencies are among the worst) and private companies choose to throw their weight around on this issue. Please cast some of the blame at security managers, many of whom are former law enforcement or former military. Sadly enough, this is sometimes for a reason. They are the ones who tell their guards “Do this” and “do that.” With the decline in public education, many guards don’t KNOW what Constitutional rights are, they only know that they need the job to feed their kids so they’d better do what the boss says.
As for whether this (typical) system of underpaid, undertrained guards overseen by penny-pinching simplistic bureaucrats is effective at preventing terrorism, I ask you to consider security screening at airports. Also underpaid, in many cases poorly managed, with little attention to consequences. Then, 11 September. Now, TSA.
The issue with photographer’s rights is a symptom of a larger issue. People are simply more and more unaware of their basic rights in confrontation with authority. Even the authorities themselves don’t know where their boundaries are. My hats off to those who complain, critique and criticize. You are doing the rest of us an important service.
In other respects Schneier’s points are ones I’ve made in previous posts. The brief article is worth reading nonetheless.
Meanwhile, in the Supreme Court Department
Yesterday the Supreme Court heard argument in an important case that, if the government has its way, could further solidify the government’s powers to restrict speech.
The case’s importance for photographers’ rights is only tangential, but not inconceivable. Others have said it, and I agree, that this potentially will be the term’s most important case.
The case is Holder v. Humanitarian Law Project, and has been nicely explained by The Christian Science Monitor, National Public Radio’s Nina Totenberg, The NY Times, and an Op-Ed piece yesterday also in The NY Times entitled, “What Does It Take to Aid a Terrorist?.” The case arises from a portion of the Patriot Act that makes it a crime to provide “material support” to a known terrorist organization. In this particular instance, the Humanitarian Law Project seeks to, as Ms. Totenberg puts it,
help others advocate lawful, peaceful solutions to international conflicts. In particular, [the] organization [has] helped the Kurdistan Workers Party, known as the PKK, make human rights claims before international bodies. They have trained Kurdish leaders in peacemaking negotiations and have brought them to Washington to lobby. But when the PKK was designated an international terrorist organization under the Patriot Act, that all stopped, and the Humanitarian Law Project went to court.
The question presented: Can the federal government constitutionally criminalize assisting someone to advocate lawful, peaceful solutions to international conflicts? Can the federal government restrict speech in such a way?
As the U.S. Solicitor General put it:
Hezbollah builds bombs. Hezbollah also builds homes. What Congress decided was when you help Hezbollah build homes, you are also helping Hezbollah build bombs. That’s the entire theory behind the statute.
(Nina Totenberg also reported on the argument before the Court yesterday, including some of the Justices’ questions.)
Let’s suppose the Court decides in the government’s favor. How might that affect photographers?
The key here is the concept of providing “material support.” If “material support” were to include assisting the political wing of a terrorist organization to pursue non-violent, political activities, then might not photography that shows a terrorist organization in a good light also qualify?
Suppose you are an American freelance photographer, and you undertake a project to capture behind-the-scenes lives of non-terrorist Taliban personnel. Suppose the Taliban has a community service branch that builds schools, provides medical services, improves Afghan communities’ infrastructure, etc. I doubt such a branch actually exists, but bear with me. You fly to Afghanistan and somehow manage to attach yourself to such a group. You photograph their work and submit your photos to numerous U.S. publications. Have you rendered material support? Think not? How about what you spent on the ticket getting there? How about the satellite phone you rented to send your images home? How about the portable hard drive you purchased for backup of your images? (Totenberg reporting on the argument: “Justice Kennedy conceded that ‘this is a difficult case for me.’ Suppose, he said, ‘the speech is tantamount to material support in that it legitimizes, encourages, or strengthens the organization.’”)
Then, if The NY Times purchases your work and runs in in the Sunday Magazine, will they also have rendered material support?
These may seem far-fetched, but I think less so if the government’s position prevails. As usual, it is not whether a “bright line” designates certain activity as criminal; rather, the potential that the government may take a position based on undefined standards that might result in your arrest and the cost of a criminal defense will deter photographers from venturing where good photojournalistic opportunities might tempt them.
From our most recent session. One of Brooke’s favorite things.