Charley

Mon, 19 Jun 2006 10:38:13 -0500

One of my students may have inspired this case - he contacted the ACLU after being harrassed by MBTA police while photographing in/on the T. The bizarre thing is that a different student of mine from the same class was photographing at an MBTA train yard the same week without incident, he even climbed into some of the cars to shoot. (No, I don't recommend this) So - someone tresspasses and has no problems, someone else photographs on the T as is his right and gets into huge trouble. Hooray! Go ACLU, go!

D.

Thu, 15 Jun 2006 08:54:01 -0500

That writeup was excellent. The Photographer's Right may be the document you're looking for. It's definitely worth reading through even if you are only a casual photographer. In an age where everyone has digital cameras, we need to know these things.

flargh

Wed, 14 Jun 2006 15:11:42 -0500

So if I have my picture taken with my horse somewhere on the green line where we're obstructing tracks, is that a hat trick? Do they dole out triple the punishment?

Mark Richards

Tue, 13 Jun 2006 16:15:39 -0500

One poor fellow experienced this sequence when allegedly videotaping. - approached by officer and asked to stop - refused - detained and searched - officer finds contraband (drugs) - arrest on drug charge Oops! When America was a different place, with rules of police conduct and evidence that protected us from an overbearing state, the evidence would have been thrown out and the prosecution admonished. I'm no attorney, but it's reasonable that if there is a law that prohibits a certain activity, you're doing the activity and a police officer demands that you cease, then you are subjecting yourself to the whim of the officer's discretion as to your immediate fate. However, the T cannot haul anyone to their prison because you refused to do something that is clearly not illegal, and it is not illegal to photograph public property. (note: someone in another forum made a mention that the T has a "copyright" on their trainsets and therefore photography of them is a violation of copyright. After a laugh, I excused myself to photograph a box of corn flakes). We can chatter all we want about "after 9/11", and argue as to what bullshit it is to prohibit photography on this ground, but after all the chatter we ought not to lose sight of the underlying issue: some of the stuff that might be photographed and published is just plain embarrassing. There are two types of public property and the courts have established these as (1) publicly-owned and therefore open to the general public, and (2) publicly owned but not generally open to the public, such as a court house or a government office, as these entities have demonstrated that free public activity might interfere with their operations. The T lives squarely in the first world, but likely they will, when the ACLU begins thrashing them, claim they're actually in the second world. T property is public property, accessible to the public, and certainly is a place where the public gathers to travel and where, like it or not, a "public forum" takes place. However, the T has an obligation (mostly to its insurance underwriters and the state that ultimately pays out on the lawsuits) to assure safety. So some rules of conduct may be created and enforced (to the extent that if you don't play by the rules, and as long as what you're doing is not a violation of established law, you can be removed from the T). As to photography, if you are in a facility where it is legal for you to be, you may photograph anything in "plain sight". There are certain unwritten protocols which suggest that one should not photograph, say, T employees doing their work or other private persons going about their business, but I doubt that the Boston Globe, to cite an example, gets a release from every face they publish in the newspaper. The T, or anyone else, has no right to confiscate your photographic equipment, film, memory card, etc., without a legal process. It's amazing to me that people aren't certain about this. Confiscation of your property has to be commensurate with your arrest, and then only the property in your immediate control may be taken (the rest can be secured and a search warrant issued to seize it if needed). The only circumstance that makes such action at all legal are those termed "exigent", where your activity can be shown to be reasonably likely of putting you, or others, in danger. The taking of your film does not quite fit. So asking you to stop photographing the MBTA because there's concern that you won't pay attention and walk off the edge of the platform into the pit is a perfectly reasonable prohibition. Taking your film is not. The argument, "get a photo permit", at least in its present form, doesn't hold much water. The permit is a means of screening out potential arrestees (as are the security screenings at airports, where each passenger is undeniably screened through criminal databases to see if they're wanted anywhere). If it were to promote safety, the T would present a short safety course. What the T wants is a pinch, and of course to keep track or control the potentially-negative images that might end up circulating. In what used to be called America, taking someone's property without a warrant or charge was known as "an illegal search and seizure". One of the amendments of the US Constitution are supposed to protect citizens from this, but I can't remember it off hand because, frankly, that one has been long forgotten. I do recall that some general who is now running all of America's domestic spy business got it wrong during a press interview. Not confidence-building. The MBTA, apparently, needs to establish its own rules, in writing, and of course get legislative authority for it should they wish the rule to have force of law. They cannot, to my knowledge, cause someone's arrest because a rule that they set is violated, nor can they rightfully apply an unwritten rule retroactively. The water is over the bridge. Tough noogies. During questioning for photography on "MBTA property", the way these things tend to go, the violator of the rule ends up in the slammer on other charges... "disorderly conduct"... "refusing a lawful order of an officer"... or if they really manage to intimidate you (which is the game) "assault and battery on a police officer". That last one, when it happens, is a big score indeed. There's an excellent handbook that's been published by an attorney experienced in these thing which I cannot locate at the moment, but it spells out all this stuff clearly.

Bostonist: MBTA vs. ACLU: The Enforcement of Unwritten Laws

Charley

D.

flargh

Mark Richards