I’ve been following the case of Randall Thomas, who was detained (arrested) by a Federal officer and his video camera and SD memory card seized while he was photographing the building in NYC that houses the FBI (and a number of other federal agencies). While not all the facts have been revealed (we’ve not yet heard the Feds’ side of the story), and a few loose ends continue to trouble me, nevertheless following this case and some related developments have led to disturbing information and even more troubling questions.
First, after the case became public (through Mr. Thomas’s own efforts — he is certainly not reticent), a Department of Homeland Security official, Luis Martinez, is reported to have said, “There are certain things that the press cannot do when it comes to national security, and filming federal buildings is one of them.” This statement is nothing if not outrageous. Mr. Martinez has single-handedly revoked the First Amendment. Other parties are pursuing a clarification from DHS. (Mr. Martinez likens the situation to that of the Port Authority of NY/NJ, which forbids photography on its property. Even though those restrictions are also controversial, the situations differ in one significant respect: the photography in Mr. Thomas’s case was from the public sidewalk.)
While focused on this instance of Federal overreaching (I’m not here addressing the three criminal counts with which Mr. Thomas is charged, which themselves raise more questions than anyone has yet answered), I found another posting that purports to replicate a 2004 Department of Homeland Security/Federal Protective Service – National Capital Region “Special Security Bulletin” entitled, “Photography of Federally Owned and Leased Facilities” (click to see enlarged versions):
Following is the text of the Bulletin (you may download a PDF of the text):
Recent questions have been raised concerning the legality of photography on federally owned and leased property. The Federal Protective Service takes the protection provided to federal facilities, employees and customers very seriously, but that security concern must be balanced with the public’s legitimate right to view and photograph federally owned and leased facilities. This bulletin provides guidelines to ensure the proper level of security is maintained for facilities and occupants without adversely impacting citizens’ rights.
As a general, overarching guideline, the Federal Register, Vol. 67, No. 240, §102-74.420, provides that:
1. Except where security regulations apply or a Federal court order or rule prohibits it, persons entering in or on Federal property may take photographs of:
(a) Space occupied by a tenant agency for non-commercial purposes only with the permission of the occupying agency concerned;
(b) Space occupied by a tenant agency for commercial purposes only with written permission of an authorized official of the occupying agency concerned; and
(c) Building entrances, lobbies, foyers, corridors, or auditoriums for news purposes.
For properties under protective jurisdiction of the Federal Protective Service in the National Capital Region, there are currently no security regulations prohibiting exterior photography of any federally owned or leased buildings. It is important to note, however, that a widely known reconnaissance activity of criminal and terrorist organizations has been to gather photographic information about prospective targets. As such, it is critical that law enforcement and security personnel be vigilant in carrying out the following proactive measures.
If individuals are identified taking photographs of the exterior of a facility, the following procedures should be followed:
1. Approach the individual or individuals taking the photographs.
2. Identify yourself.
3. Conduct a field interview to determine the purpose of taking photographs of the facility and endeavor to ascertain the identity of the individual.
4. If the field interview does not yield a reasonable belief of criminal behavior or terrorist reconnaissance activity, the photography should be permitted to proceed unimpeded.
5. If the field interview does yield a reasonable belief of criminal behavior or terrorist reconnaissance activity, immediately contact the Federal Protective Service Mega Center at (202) 708-1111.
6. All contact with the public, to include photographers, must be conducted in a professional but polite manner. Security personnel should not be distracted from their duties by engaging in assisting in the photographic effort.
7. Note that contract guards are only authorized to conduct security activities while on Federally owned or leased property. If the individual taking exterior photography of a Federally owned or leased facility is not physically located on property owned or leased by the Federal Government, the guard should immediately notify the Federal Protective Service Mega Center at (202) 708-1111 for a law enforcement response.
Although it is legal to take photos and video of Federally owned and leased facilities, law enforcement and security personnel have an affirmative duty to carry out the protective measures above. [Emphasis in original]
Of course, the Bulletin applies only to facilities in the District of Columbia. Nevertheless, we may suppose that the same sentiment, if not identical instructions, applies for federal facilities elsewhere. What’s troubling?
First, the statement ”that a widely known reconnaissance activity of criminal and terrorist organizations has been to gather photographic information about prospective targets.” To the best of my knowledge, at least insofar as regards terrorists’ activities, absolutely no evidence supports that statement. (And this notwithstanding that Google Maps permits one to scan up the side of the building
and that Google Earth permits a satellite view that comes in really close on the structures, the street, and surroundings:
all of which the Feds cannot control — nor should they.)
Second, the directions imply that in every case where a person is observed to be photographing a facility from public property, that person is to be engaged by a federal law enforcement official.
Third, the directions imply that photographers are expected to cooperate. What if (as was the case for Thomas) they don’t? As I’ve noted before, in many states (and when confronted by federal authorities) until such time that you are arrested (and a few other circumstances), you are not obliged to give your name, provide identification, or explain what you are doing. In Thomas’s case, he was charged with “failure to comply with directions of a law enforcement officer,” “disorderly conduct” and (the most serious charge) “impeding duties of a Federal officer” (which requires at minimum a form of assault). All these resulted — accepting Thomas’s allegations — when Thomas simply (if perhaps somewhat impolitely) exercised his constitutional rights.
Like I say, this situation merits continued attention.