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FEDERAL RESOURCES

MEMOS/POSTERS

USPS POSTER 7 (RELEVANT TEXT)

Photographs for News, Advertising, or Commercial Purposes


Photographs for news purposes may be taken in entrances, lobbies, foyers, corridors, or auditoriums when used for public meetings except where prohibited by official signs or Security Force personnel or other authorized personnel or a federal court order or rule. Other photographs may be taken only with the permission of the local Postmaster or installation head.

https://about.usps.com/posters/pos7/welcome.htm

2018 DHS mEMO - (rELEVANT TEXT)

Photography and Videotaping Federal Facilities


BACKGROUND


Photography for news, advertising or commercial purposes is governed by 41 CFR 102-74.420. In October, 2010, FPS disseminated an FPS Information Bulletin (HQ-IB-012-2010) to the field addressing the photographing of the exterior of federal facilities. The purpose of the bulletin was to remind FPS personnel and PSOs that the public has the right to photograph the exterior of federal facilities from public forums. Since the publication of the bulletin, FPS has experienced an increase in the public’s interest in photographing and videotaping both exterior and interior of federal facilities protected by FPS, to include individual’s expressing their First Amendment-protected rights by intentionally photographing and videotaping the exterior and interior of a federal facility and law enforcement in the course of their duties to test FPS law enforcement and PSO response. Also, new case law impacts the interpretation and implementation of FPS enforced regulations.


To address this increase in photography and videotaping by the public, this Operational Readiness Order reiterates the 2010 guidance; provides clarification on the public’s right to photograph publicly accessible federal facility building entrances, lobbies, foyers, corridors and auditoriums; and directs FPS law enforcement personnel and PSOs to maintain security without adversely impacting the public’s rights relating to photography

and videotaping.


PHOTOGRAPHING THE EXTERIOR OF FEDERAL FACILITIES


For properties under the protective jurisdiction of FPS, there are currently no general security regulations prohibiting exterior photography of any federally owned or leased building, absent a written local rule or regulation established by a Court Security Committee or, in limited cases, a Facility Security Committee.

Furthermore, it is important to understand that 41 CFR 102-74.420 does not prohibit photography by individuals of the exterior of federally owned or leased facilities. Rather, this regulation describes when an individual may photograph the interior of federally buildings, i.e., "space occupied by a tenant agency" or "building entrances, lobbies, foyers, corridors, or auditoriums."

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As a reminder, photography and videotaping, absent a criminal predicate, is a First Amendment protected activity.


PHOTOGRAPHING THE INTERIOR OF FEDERAL FACILITIES


Title 41, Section 102-74.420 of the Code of Federal Regulations provides federal "policy concerning photographs for news, advertising or commercial purposes." It states, "Except where security regulations, rules, orders, or directives 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 anauthorized official of the occupying agency concerned; and


c) Building entrances, lobbies, foyers, corridors, or auditoriums for news purposes."


In applying this regulation to FPS protected federal facilities, FPS law enforcement personnel and PSOs should consider the following information when contemplating enforcement of the regulation.


REGULATION:


"Except where security regulations, rules, orders, or directives 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 noncommercial 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”


“c) Building entrances, lobbies, foyers, corridors, or auditoriums for news purposes."




APPLICATION:


Photography and videotaping the interior of federal facilities is allowed under the conditions set forth in (a) – (c) of the regulation unless there are regulations, rules, orders, directives or a court order that prohibit it.


For example, SSA has rules that prohibit photography and videotaping in its spaces. Similarly many courts issue no photography or videotaping in courtrooms and surrounding areas. The prohibition must be clearly posted or actual (in-person) notice must be given in order to be enforced.


Non-commercial photography and videotaping in space occupied by a federal tenant requires the verbal permission of the federal tenant. For example, a visitor to an Army Corps of Engineers office has verbal permission from the office manager to photograph the private promotion ceremony of a friend. A student is given verbal permission from the office manager to

take photographs of the office for a school project.

Commercial photography and videotaping in space occupied by a federal tenant requires the written permission of the agency official authorized to approve commercial photography and videotaping. Journalists, news media, or other individuals photographing or videotaping for news purposes is not considered a commercial purpose. For example, a professional photographer has obtained written permission from the designated official at a building housing only Department of Interior offices to photograph architectural design work performed by one of the photographer’s clients. A movie company is given written permission from the designated

official to videotape a federal facility.


Recognizing this fact, the public is allowed to photograph interior building entrances, lobbies,

foyers, corridors and auditoriums from publicly accessible areas. For example, someone can

photograph in the common space and publicly accessible lobby of a federal facility.


This right, however, does not authorize a photographer to intrude on restricted space surrounding a security post, create loud or unusual noises or cause a nuisance, obstruct the usual use of entrances, lobbies and other commonly accessible space, impede or disrupt the performance of official duties by government employees or federal contractors, including the PSOs, nor prevent the public from obtaining government services provided in the facility in a timely manner.


UNCLASSIFIED//LAW ENFORCEMENT SENSITIVE



SUPREME COURT DECISIONS

First Amendment CaseS


First Amendment

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.


"PUBLIC/PRESS PHOTGRAPHY"


"You're not allowed to film me or my property":

Boyd v. United States, 116 U.S. 616 - "The eye cannot be guilty of a trespass."


"Not allowed to film police":

Glik v. Cunniffe, No. 10-1764 (1st Cir. 2011) - (Credentials) A citizen's right to film government officials, including law enforcement officers, in the discharge of their duties in a public space is a basic, vital, and well-established liberty safeguarded by the First Amendment.

Mills v. Alabama, 384 U.S. 214, 218 (1966) - Gathering information about government officials in a form that can readily be disseminated to others serves a cardinal First Amendment interest in protecting and promoting “the free discussion of governmental affairs.”

Fordyce v. City of Seattle, 55 F .3d 436, 439 (9th Cir.1995) - “The First Amendment protects the right to gather information about what public officials do on public property, and specifically, a right to record matters of public interest.”


"Press credentials":

Lambert v. Polk County, 723 F.Supp. 128, 133 (S.D.Iowa 1989) - “[I]t is not just news organizations who have First Amendment rights to make and display videotapes of events - all of us have that right. ”

https://www.leagle.com/decision/1989851723fsupp1281833

Lovell v. City of Griffin, 303 U.S. 444 (1938) - (Credentials) "The press, in its historic connotation, comprehends every sort of publication which affords a vehicle of information and opinion."




Fourth Amendment CaseS

Fourth Amendment

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

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Terry v. Ohio, 392 U.S. 1 (1968) (STOP AND FRISK)

Under the Fourth Amendment of the U.S. Constitution, a police officer may stop a suspect on the street and frisk him or her without probable cause to arrest, if the police officer has a reasonable suspicion that the person has committed, is committing, or is about to commit a crime and has a reasonable belief that the person "may be armed and presently dangerous."


https://supreme.justia.com/cases/federal/us/392/1/



Brown v. Texas, 443 U.S. 47 (1979) (Suspicion of CRIME)

"To detain appellant and require him to identify himself violated the Fourth Amendment because the officers lacked any reasonable suspicion to believe that appellant was engaged or had engaged in criminal conduct. Detaining appellant to require him to identify himself constituted a seizure of his person subject to the requirement of the Fourth Amendment that the seizure be "reasonable."

"The Fourth Amendment requires that such a seizure be based on specific, objective facts indicating that society's legitimate interests require such action, or that the seizure be carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers."

"Absent any basis for suspecting appellant of misconduct, the balance between the public interest in crime prevention and appellant's right to personal security and privacy tilts in favor of freedom from police interference."

https://supreme.justia.com/cases/federal/us/443/47/



Illinois v. Wardlow, 528 U.S. 119 (2000) (High-Crime Area)

"An individual's presence in a "high crime area," standing alone, is not enough to support a reasonable, particularized suspicion of criminal activity."

https://supreme.justia.com/cases/federal/us/528/119/


Davis v. Mississippi, 394 U.S. 721 (1969); Terry v. Ohio, 392 U.S. 1, 16 -19 (1968)

The Fourth Amendment, of course, "applies to all seizures of the person, including seizures that involve only a brief detention short of traditional arrest.



Fifth Amendment CaseS

Fifth Amendment

"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."

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Ohio v. Reiner, 532 U.S. 17 (2001) - "One of the Fifth Amendment's basic functions is to protect innocent persons who might otherwise be ensnared by ambiguous circumstances. Truthful responses of an innocent witness, as well as those of a wrongdoer, may provide the government with incriminating evidence from the speaker's own mouth."

https://supreme.justia.com/cases/federal/us/532/17/


Watts v. Indiana, 338 U.S. 49 (1949) - "Any lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to police under any circumstances."

https://www.law.cornell.edu/supremecourt/text/338/49


Ullmann v. United States, 350 U.S. 422 (1956) - "Too many, even those who should be better advised, view this privilege as a shelter for wrongdoers. They too readily assume that those who invoke it are either guilty of crime or commit perjury in claiming the privilege."

https://supreme.justia.com/cases/federal/us/350/422/

U.S. LAWS

41 CFR § 102-74.420 - Federal policy concerning photographs for news, advertising or commercial purposes

41 CFR § 102-74.420 - Federal policy concerning photographs for news, advertising or commercial purposes.

Except where security regulations, rules, orders, or directives 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.

https://www.law.cornell.edu/cfr/text/41/102-74.420

18 U.S. Code § 242 - Deprivation of rights under color of law

Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such person being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined under this title or imprisoned not more than one year, or both; and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire, shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse, or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death.

42 USC Section 1983- Civil Action for Deprivation of Rights

The Civil Action for Deprivation of Rights Act is commonly known as Section 1983. The purpose of the Act is to provide a private remedy for violations

of Federal Law. Section 1983 states:

"Every person who under color of any statute, ordinance, regulation custom or usage of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia."

http://www.fsfac.org/userfiles/files/Section_1983_rough_draft_updated051720153.pdf

Monroe v. Pape, 365 U.S. 167, 81 S. Ct. 473, (1961) Determined that the policy behind the statute was "to afford a federal right in federal courts because . . . claims of citizens to the enjoyment of rights, privileges, and immunities guaranteed by the Fourteenth Amendment might be denied by state agencies." 365 U.S. at 180.


42 U.S. Code § 1985 - Conspiracy to interfere with civil rights

(3)Depriving persons of rights or privileges

If two or more persons in any State or Territory conspire or go in disguise on the highway or on the premises of another, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; or for the purpose of preventing or hindering the constituted authorities of any State or Territory from giving or securing to all persons within such State or Territory the equal protection of the laws; or if two or more persons conspire to prevent by force, intimidation, or threat, any citizen who is lawfully entitled to vote, from giving his support or advocacy in a legal manner, toward or in favor of the election of any lawfully qualified person as an elector for President or Vice President, or as a Member of Congress of the United States; or to injure any citizen in person or property on account of such support or advocacy; in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators.

Qualified Immunity - Harlow v. Fitzgerald, 457 U. S. 800, 818

(a) Qualified immunity shields a government official from money damages unless (1) the official violated a statutory or constitutional right, and (2) that right was “clearly established” at the time of the challenged conduct.