By DRN, Special for USDR
The American Civil Liberties Union (ACLU), which claims on its Web site to “preserve the individual rights and liberties that the Constitution and laws of the United States guarantee everyone in this country” is surprisingly picking and choosing when it thinks the First Amendment is a Constitutional right.
The ACLU clearly supports the right of private individuals to photograph anything that is in plain view, including photographing the badge number, name tag, and face of a law enforcement officer. However, photographing and storing a rectangular piece of metal with six or eight alphanumeric characters that is required to be publicly displayed and contains no personally identifiable information – such as the vehicle owner’s name or phone number – amounts to surveillance and even illegal search and seizure, in the ACLU’s view.
The conflicting positions of the ACLU are highlighted in the organization’s campaign against the use of license plate recognition (LPR), a technology that automates the photography of license plates and enables the creation of a database of license plate images along with a date and location stamp. The database of images contains no personally identifiable information but is a critical tool that has allowed law enforcement to solve thousands of crimes including murders, rapes and abductions.
The ACLU’s misleading rhetoric about LPR includes the following commentary: “When people feel that their movements may be recorded, they feel less comfortable traveling freely and engaging in activities that might be controversial or stigmatizing, even when those activities are important or beneficial.”
Yet, ACLU collateral that is focused on ensuring that photographers “know your rights” says something much different: “Taking photographs of things that are plainly visible from public spaces is a constitutional right … When in public spaces where you are lawfully present you have the right to photograph anything that is in plain view.”
“The ACLU appears to want to change the rules of photography when it comes to LPR cameras,” said Chris Metaxas, CEO of Digital Recognition Network. “They seem concerned about our ability to take and store a high volume of photographs. Do they have the same issues with Google or other online services that make available countless photos that often reveal personally identifiable information? The ability to photograph public events in public places seems to be a cause that the ACLU would fight for, not against.”
For additional details on the inconsistent 1st Amendment positions of the ACLU, please research the following:
The idea of cameras monitoring every highway, boulevard, and alley might strike some Americans as Orwellian. But even the American Civil Liberties Union acknowledges that the public has no right to license plate privacy on public streets. After all, cops can enter plate numbers by hand, so why not by camera? “There’s absolutely no bar on collecting plates in public,” says Barry Steinhardt, director of the ACLU’s technology and liberty program. “There haven’t been any legal challenges, because it’s not illegal.”
“That’s part of our right of free speech, and the police ought to know that citizens can do that just as the police can take pictures of citizens out on the street,” said Arthur Spitzer, of the ACLU.
“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. Such photography is a form of public oversight over the government and is important in a free society.”
“Taking photographs of things that are plainly visible from public spaces is a constitutional right – and that includes federal buildings, transportation facilities, and police and other government officials carrying”
“It’s also been nearly two years since the First Circuit Court of Appeals held that the right to film police officers is protected by the First Amendment and that, moreover, that principle is so “fundamental and virtually self-evident” that it should have been known to the police even before the court’s ruling. That ruling was only the most prominent—courts around the country have been pretty much unanimous in finding such a right.”
“The ACLU of San Diego filed a lawsuit today against the U.S. Customs and Border Protection agency (CBP) for violating the constitutional rights of two photographers, and for maintaining an official policy prohibiting the use of cameras and video recorders at or near U.S. crossing points, which violates the Constitution.”
“The agency 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 may want to ask what the legal authority for that rule is.
The ACLU does not believe that restrictions on photography in the public areas of publicly operated airports are constitutional.”
The Civil Rights Division of the US Department of Justice doesn’t mince words in a May 14 letter to the Baltimore Police Department. Citizens have a constitutional right to record police carrying out their public duties, and it is illegal for police to seize and delete the recordings, the letter says. The DOJ goes on to give the BPD a blueprint for re-writing its policies regarding journalists or citizens recording police activities. The letter, posted on the DOJ web site, could be a powerful tool for photographers (or citizens) who are harassed or arrested anywhere in the country for photographing police activities. It says exactly what National Press Photographers Associations, the ACLU, and others have long argued–one painstaking case at a time– about citizens’ right to record police activities. “Private individuals have a First Amendment right to record police officers in the public discharge of their duties,” the DOJ writes to the Baltimore police. The letter continues, “[O]fficers violate individuals’ Fourth and Fourteenth Amendment rights when they seize and destroy such recordings without a warrant or due process.”
“You can’t arrest everyone with a camera, especially when you don’t even know they’ve got a camera… America has a class of government workers who believe that they are above citizen scrutiny, and who are prepared to abuse their powers to avoid that scrutiny. The only solution for this is to punish offenders severely enough that others learn their lesson.”
Taking photographs of things and events that are plainly visible from public spaces is a constitutional right. This is true for both citizen photographers and journalists.
Photography is Not A Crime
The ACLU complaint says “photography is not a crime; it is a means of artistic expression.” – See more at: http://www.rcfp.org/browse-media-law-resources/news/aclu-sues-los-angeles-police-detaining-photographers#sthash.6p5BPfmc.dpuf
“Photography is not a crime. It’s protected First Amendment expression,” said Peter Bibring, senior staff attorney at the ACLU of Southern California. See more at: http://www.huffingtonpost.com/2011/10/28/aclu-sues-lasd-for-harass_n_1063664.html
So apart from a few specific cases, the basic rule is that if you can see it and you are on public property (e.g. on the road or sidewalk) then you have the right to photograph it.
“However the simple act of taking a photograph there isn’t illegal and you do not have to surrender your camera, your film or memory card and you do not have to show your images to any security personnel or delete your images. You can simply leave the area if told that photography isn’t allowed.”
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