Photographers tangle with vague rules in transit hubs

From the Spring 2009 issue of The News Media & The Law, page 34.

Stephen Colbert told the story in a nutshell in February on his faux news show: “Amtrak announces a photography contest. [Duane] Kerzic takes photographs for Amtrak’s photography contest. Amtrak police arrest Kerzic for taking photographs.”

It sounds absurd, and yet it’s true. As Kerzic, a New Jersey photographer, told photography blogger Carlos Miller, he was snapping photos for the contest on a train platform in New York City’s Penn Station on Dec. 21 when he stumbled into a pair of police officers. They told him to delete the pictures from his camera. Kerzic refused, and ended up in handcuffs. The police, he claimed, told him “it was illegal to take photos of trains.”

“The only reason they arrested me was because I refused to delete my images,” Kerzic told Miller, whose personal blog, Photography is Not a Crime, is devoted to the First Amendment rights of photographers. “They never asked me to leave, they never mentioned anything about trespassing until after I was handcuffed in the holding cell.”

Kerzic, who declined to comment for this story, is hardly the only photographer to encounter official hostility at a train station. And the conflict he described is far from new. Over the last decade, security measures in many places have tightened — despite the fact that cameras are increasingly ever present, and photography in public places is protected by the First Amendment.

In some recent documented cases, often where the rules were unknown or misapplied, photojournalists and amateur cameramen alike have been harassed, even handcuffed, for snapping pictures in security-sensitive mass transit hubs.

In New York and Washington, D.C., officials have responded by demanding at least a clarification of the rules. One lawmaker, D.C. Congressional Delegate Eleanor Holmes Norton, called on Washington’s privately run Union Station to produce a coherent photography policy with “a presumption in favor of public First Amendment access,” according to a July 2008 press statement.

And just last month, Amtrak revealed a new set of national photography guidelines for its employees and police, as well as the public — the product of a collaboration with the National Press Photographers Association, which had criticized the train system for photographer harassment.

While security and safety concerns are typically used to justify photography bans, according to Charles Davis, executive director of the National Freedom of Information Coalition in Missouri, enforcement is often so inconsistent that such rules are “relatively meaningless.”

To wit: A commuter’s cell phone camera can be so discrete as to escape notice altogether, such that, Davis said, “It’s incredibly random that [a] person even gets caught.”

“You can say it’s about security,” he said, “but if your regulation or arrest . . . does absolutely nothing to further that interest,” it is unclear what purpose is actually served.

Put down the camera

The vagaries of the Union Station rule and its hodgepodge enforcement scheme nearly got National Public Radio employee Andy Carvin arrested last spring.

As he later wrote on his blog, Carvin went to the train station in May 2008, thinking it would be a great place to demonstrate for other journalists his new Gigapan photography equipment, with its capacity for highly detailed sweeping panoramic photographs. Carvin got his photo, but he was also hassled by three security guards who ordered him — “in a cordial, yet firm tone,” he wrote — to stop shooting pictures and leave the station.

Carvin, who also declined to comment for this article, said he was even told to delete the photos from his camera. He refused.

The reason for the run-in? Union Station is a private space, Carvin was told, and he needed prior approval to take photos there. Carvin wrote that while he understood Union Station is managed by a private company, it seemed odd for the officials to argue that it is a private space, in which journalists would need permission to take pictures.

And the inconsistent justifications mounted. According to Carvin, before that particular official raised the private-space argument, other security guards said it was merely his tripod that wasn’t allowed, or that the Gigapan device was banned.

“I also question their right to demand that we erase photos, and am puzzled by the capriciousness of their overall position,” he said online, “given how they first allowed us to take photos but then changed their minds, offering mixed messages as to why.”

Absurdity reigned in yet another run-in that same month at Union Station: A local Fox reporter was interviewing an Amtrak spokesman inside the station on the very topic of a photography ban when a security guard came up and told them to stop.

Just then, according to news reports, the Amtrak spokesman was declaring on-camera that no such ban existed in that part of the station.

Elsewhere in Washington, D.C., Metro train spokesman Steven Taubenkibel says people can generally film or shoot photos wherever they want inside the train stations. But at least one of the 86 Metro stops is apparently exempt from that rule: the Pentagon.

A huge placard bearing the station’s “No Photography” rule has sat for some time about 20 feet from the upper-level platform edge. Echoing Davis’s notion that photography bans are almost by nature inconsistently enforced, Chris Layman, a Pentagon Force Protection Agency spokesman said federal regulation bans photography on the entire Pentagon Reservation. That’s the 280-acre property that includes the Pentagon building and the Metro station. But the ban, Layman said, is “more of just a deterrent if something were to happen.”

Layman said Pentagon officials keep an eye out for “suspicious activity” in the area. Photographers could be deemed “suspicious,” he said, if they are seen “taking pictures of security measures that they may see. It could be that they’re trying to take pictures of certain people entering the building . . . or how our security operates.”

Tourists were seen snapping photos inside the Metro station without a problem the weekend before President Obama’s inauguration, when security was especially tight throughout the region. But as Davis pointed out, people often do not realize property rules or laws governing photography in transit hubs even exist “until someone gets arrested.”

Taubenkibel explained that the Pentagon sign went up after the Sept. 11, 2001, terrorist attacks at the Pentagon and in lower Manhattan.

Indeed, the Sept. 11 attacks have formed a backdrop to photography bans and similar run-ins in New York City, where photography has historically been a touchy issue in the subway, according to Chris Dunn, associate legal director for the New York Civil Liberties Union. In December 2007, the NYCLU, on behalf of Columbia University graduate student Arun Wiita, sued the New York Police Department for harassing Wiita — handcuffing and detaining him, the NYCLU said — while he was taking pictures on a train platform for a project on the subway.

No law prohibits photography in subway stations, Dunn said, unless special equipment like extra lighting is used. He attributed run-ins between police and photographers to a “widespread belief” that cameras are “suspicious and unlawful.”

“They’re wrong on both counts,” Dunn said, explaining that the city settled with Wiita “relatively quickly” and, a few months later, sent out a directive to police reiterating the existing rules on photography, as well as addressing new filming policies.

Glimmer of compromise

Amidst all the debate over flair ups in transit hubs, one recent policy development seems promising for photographers. Amtrak released new rules in January regarding photographers and filmmaking in train stations, clearly stating: “Taking photographs and/or videos is permitted within public access areas on Amtrak property.”

A separate order sent to Amtrak police explicitly forbids officers from deleting or destroying photographs or videos, National Press Photographers Association President Bob Carey said.

And the NPPA president said Amtrak listened to the photographers’ group when it came to concerns on how to address the relationship between photography and terrorism. According to Carey, original language proposed for an Amtrak police order said, “Characteristics of target marking, according to terrorist profiles studies, also include photography and video recording activities.”

But that wording characterized photography with “a sinister side,” Carey said, adding that while terrorist have used photography in the past to gather information, they could just as easily get similar information on other Web sites and through common search engines.

The wording that Amtrak ended up using was more to Carey’s liking, he said.

“The changing in wording indicates that Amtrak understands the rights of citizens to take photos in public places,” he said.

While Amtrak policy does ban photos on in-service train cars and other restricted areas, Carey said he was pleased that Amtrak was receptive of nearly everything the NPPA advocacy committee had asked of the policymakers — “verbatim, almost.”

Overall, he said, it was gratifying to be part of the process.

“We have a background in” photography and First Amendment issues, Carey said. “We understand how the media works, especially photojournalism, and we were able to give them some broader guidelines.”