The Permission Trilogy, Part One

You Can’t Take Pictures Here

What follows is the first in a three-part series about our devolving understanding of permission in photography. For the purposes of this discussion I’m talking about laws in the good ol’ U.S. of A. The same rules don’t apply in other countries, so bear that in mind before you go and get yourself thrown in a Norwegian prison.

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One time, for a client, I was photographing the downtown high-rise office building in which that client’s office resides. Standing on the expanse of pavement between building and sidewalk, I put my camera to my eye and leaned back, craning to frame the facade in a peculiar Dutch angle. Chatting with my client as I did, neither of us noticed the security guard approaching. 

“You can’t take pictures here,” she said upon arrival.

I lowered my camera. 

“It’s okay,” my client said. “We’re with [redacted].”

“No,” the guard replied. “No pictures.” 

Exchanging puzzled looks, we shrugged and shuffled over to the curb. When we arrived and stepped off private property and onto the public sidewalk, I knew we were in the clear. So again I put my camera to my eye and leaned back, craning to frame the facade in a slightly less interesting and dynamic composition. 

The security guard’s head popped into view. 

“You can’t take pictures here,” she said. 

“Oh?” I replied, pointing to my feet. “Aren’t we on public property?” 

“Sorry,” she said, “pictures of the building are prohibited.” 

I must have looked confused as I replied to the effect of, “Well, we’re on a public sidewalk so unfortunately you don’t get to tell me what I can point my camera at. Your rules don’t apply when I’m not on your property.”

“You can’t take pictures of the building,” she insisted. 

I raised my camera and she, childishly if I do say so, raised her arms to block my view. 

I looked at my client who looked at me. We blinked slowly in synchronized bafflement before turning to go. We crossed the street to the opposite corner, where I was fairly certain the overzealous security guard would not follow. I was correct, but she did stand and glare, quite small at the bottom of my now not so interesting frame, scrutinizing our every move. My client called the office to see about getting actual permission. It came back that no, under no circumstances would the property manager approve any photography of the building, even for a prominent tenant. Not nobody, not no how.

So we made do as best we could from across the street. After a few minutes of subpar photography and several minutes of undoubtedly elite tier complaining, we returned to the building’s front door. 

“Sorry,” we were greeted by the now smugly smiling security guard. “Since you came in this morning through the loading dock, you have to go back in through there now.”

She was puffed up to fill the doorway with her diminutive body. I don’t think we protested with any vigor, but man was I annoyed to have lost this petty battle. We turned and trudged what seemed like six blocks around to the back of the building, the whole way whining about this ridiculous security guard enforcing these ridiculous rules. 

It’s been a few years and that security guard still works there. I see her a few times a year, each time pretending I don’t remember what happened. But I do remember, and I know she does too. I wonder if she writes essays about how awful I am?

In truth I hardly blame her. And I don’t really think I antagonized her much. Sure, a more reasonable person would know which rules are worth bending, but I try not to mess with people who are just trying to not get fired. Should I expect her to be a constitutional scholar? No, her bosses said one of the rules is no pictures of the building and so she’s just trying her best. 

What I do think is awful is the idea of a megacorporation trying to prevent anybody from looking at your building in the middle of a city. There’s no difference, legally speaking, between looking at a building and looking at a building through a camera. The whole thing is preposterous. Her employer should know better and stop wasting everyone’s time. What could I possibly see from the street that they’d want to hide from pictures? If it’s that important, plant a shrub.

Here are several photographs of that building because I am nothing if not petty. 

What’s the moral of the story? To me it’s simple: our society is changing the way we think about whether photographers should be allowed to take pictures in public places, and we’re going about it all wrong. We’re backsliding. It’s absurd that any entity would think it has the right to control what people on public property do with their eyes and cameras. Imagine telling someone walking down your street they’re not allowed to look at your house and expecting their obedience. Ridiculous. But no more absurd than the asinine rules this company spent good money training its security guards to desperately struggle to enforce.

It’s one thing to dictate what people do when they are on your property. Failure to obey lawful rules in those situations is illegal. It’s called trespassing, and you can damn sure be thrown off of some company’s property when you’re not following their rules. But those rules don’t extend to public property. Don’t let anyone—a security guard, a passerby, and certainly not a corporation—try to convince you otherwise. 

You can certainly sue the hell out of me for licensing a picture of your property without your permission, but what’s illegal is the usage of the picture, not the picture itself nor the act of its creation.

Likewise, there are nuisance laws (like prohibitions against excessive noise), business laws (such as requirements for permits and inspections) and safety laws (like obstructing the free flow of traffic) but there are essentially no laws about what you can’t do with a camera in public.

And yet…

I’ve been hassled so many times simply for putting a camera to my eye. I even met my wife that way. A stranger at the time, she tapped me on the shoulder to ask if I had a press pass. The nerve! I gave her the cold shoulder, followed by the charming smile, and the rest is history. 

Another time, early one morning in far flung suburbs, I watched a bedraggled Gap assistant manager hike across a mile of tarmac just to ask me what I was photographing. 

“The property owner hired me to shoot this strip mall,” I said. 

“Okay,” he shrugged, before heading back to his store. It was no big deal, but it always struck me as strange that he, or someone in his store, thought, “We’d better stop what we’re doing to go check out that photographer to see what he’s up to. If he’s a terrorist he has to tell us.”

What on earth could I possibly be up to other than taking a picture of a mostly empty parking lot? More importantly, why do you care? And if it’s really that suspicious, shouldn’t you just call the cops? 

One time somebody did. I was hassled by no less than the Department of Homeland Security because I was taking pictures (again from a very obviously empty public sidewalk during the middle of the afternoon in a fashion that could only be described as the opposite of clandestine) of a scene that included a light rail system. I guess maybe the bad guys have started surveilling public transit with tripods in the middle of the city in the middle of the day?¹

I had been hired to photograph street signs and so I spent the afternoon cruising around town, whereupon I noticed a pleasant scene of a commuter train leaving the station framed by a skyline background. So I waited ten minutes for the next train to arrive and, in the process, drew the attention of the po-po. 

To this Homeland Security officer’s credit, he was nothing if not friendly. He took an “Aw shucks” attitude throughout the whole process of hassling me for my papers. But in a way that makes it worse. Because I would have to be a real jerk to cause trouble and give someone so friendly the slightest bit of grief. 

Except for the little hiccup that it’s a textbook violation of our constitutional rights. There’s no suspicion of criminal activity, he knows it and I know it. But in the moment, when your choice is to either produce I.D. and be on your way or to stubbornly fight for civil rights and have the afternoon turn into one hell of an evening, god forbid an overnight stay… It’s so difficult not to acquiesce. Which is why it’s so important that people in power use discretion, and are themselves policed in such a way as to ensure it. Because my choice wasn’t really a choice. I was free to go when the officer decided I was, Fourth Amendment be damned. Sure I might win a lawsuit. But for what? I just wanted to finish my shoot and pick up my kids after school. Did I really have a choice?

I am the problem. This kind of behavior is acceptable only because we allow it to be. 

It doesn’t help that law enforcement tends to see photography as a clear and present danger. Not only in controversial arrest videos (in which the people with cameras are often aggressively chased away) but also in the policies designed to keep our society safe from those hoping to do real harm. Take a look at this DHS guide to recognizing suspicious activity. Right there, front and center, is PHOTOGRAPHY. To the Department’s credit, I suppose, the guide does specify that what is suspicious is “taking pictures in a covert manner” but why bother with such a specific (and presumably rare) detail when you can use the much easier shorthand that taking pictures is in and of itself suspicious?

I get it. Security is serious and difficult and challenging. And so what if it’s mildly inconvenient for some of the people some of the time? The problem is, we have “officially” filed photography away as a suspicious activity (both here and in the U.K.) and so if the gub’ment thinks it’s suspicious shouldn’t the rest of us? This vicious cycle isn’t helping anyone—neither police nor photographers. Maybe we can dial down the suspicion a notch or two? 

So consider this a public service announcement. It’s time to get reasonably outraged. When opportunities arise, spread the word that you can take a camera out in public, and you can take a picture of this building or that one, of this car or that one, of this place or that one. Perhaps as public sentiment becomes less suspicious of photographers, security guards and law enforcement will too. 

Or maybe it has to work the other way? If we convince the corporations and the police to simply follow the rules in the spirit in which they were intended, maybe the rest of us will come to understand that a camera in public simply isn’t suspicious. 

Or perhaps, as I’ll explore next time, cameras are more dangerous than ever.

1. I have searched and searched and simply cannot find any evidence one way or the other, but I was once told that there’s never been a documented case of a terrorism plot foiled by stopping a photographer. If any of you happen to know whether that’s actually true or just sounds like it, please point me to a source.