While driving up Interstate 80 en route to Thanksgiving dinner this past fall, amateur photographer Dave Ritter spotted the curly white steam pouring from the smokestacks at the ConocoPhillips refinery in Rodeo. "It looked very iconic to me," he recalled. So he parked on a nearby residential street, walked a little closer, spent five minutes snapping shots, then turned to leave. That's when a security guard pulled up and told him he couldn't take such pictures.
What happened next highlights the increasingly contentious relations between photographers and security personnel in the post-September 11 age. Ritter, who is employed as an IT systems specialist by this newspaper's parent company, takes pictures of industrial objects with interesting textures and then uploads his images to a stock-photo Web site so that others can download them for free. Ritter told the guard that, legally, photographers can shoot anything as long as they are on public property.
But the guard wasn't appeased, Ritter said, and continued trailing him in her van, cutting in front of him and flashing her lights. That irritated Ritter, so he snapped a few shots of her, too. By the time he got to the edge of the refinery's property, he recalled, another guard was waiting, who told him that photographing it was a homeland security violation.
Ritter was prepared for this, since past run-ins at industrial sites had prompted him to bone up on 9/11-related law. "I told him, 'There's not a single word in the Homeland Security or PATRIOT Act that says a single thing about photography,'" he recalled. The guard, he says, warned him to keep moving.
Yet as Ritter attempted to drive away, a third security guard rolled up, as well as a deputy from the Contra Costa County sheriff's department. According to Ritter, the officer ran his Arizona driver's license and questioned him closely about why he was taking photos and what he was doing in the area with an out-of-state license. Ritter explained that he was a stock-photo hobbyist in the East Bay on business.
The first security guard then reappeared, Ritter recalled, and demanded that he surrender his film. Ritter refused, and said the guard then asked the sheriff's deputy to demand the film. The deputy demurred, but, Ritter claimed, warned him to leave town, which he gladly did.
Contra Costa County sheriff's office spokesman Jimmy Lee confirms that Ritter's photo-taking was reported by refinery security as a "suspicious circumstance," and that a deputy questioned Ritter and ran his ID. Lee said that running someone's ID is "pretty standard, and honestly if we didn't do that we'd be negligent," given that the refinery is "sensitive, a critical infrastructure." He denied that Ritter was told to leave town, however, and said there is nothing in the deputy's report about Ritter being asked to surrender his film.
In a brief statement, refinery public relations manager Mark Hughes said this was a necessary precaution: "In light of 9/11, we've certainly increased our plant security, and so people parked illegally adjacent to our facility photographing our plant is a cause for concern. We did approach this gentleman and asked that he not take pictures of the refinery and that he continue on, and I know that our efforts were supported by the local county sheriff. That's basically it we're concerned about national security and the safety of our community, and that's what prompted our response." Hughes did not respond to requests to confirm the details of the exchange between Ritter and the guards, explain what national security concerns were at stake, or justify his assertion that Ritter was parked illegally.
If you ask photography experts, the refinery is just blowing smoke. "After 9/11, there were stories from all over the country of photographers getting hassled for doing things that photographers have done ever since cameras were invented," says Derek Powazek, editor of San Francisco-based JPG Magazine, which publishes reader-submitted digital photos. "Partly it was national paranoia. Partly it was misinformation in reporting there were stories that came out about terrorists using cameras for scoping out locations, and that created paranoia amongst the public about anyone with a camera."
Over the past few years, photographers have been so frequently hassled in the name of homeland security for shooting nearly anything corporate buildings, bridges, public parks that Powazek devoted JPG's November issue to the theme "Photography Is Not a Crime" and invited readers to contribute their horror stories. September 11 can be invoked as a handy blanket excuse when photographers are often really being given the bum's rush for totally different reasons shop owners worrying that photographers are spooking their customers or spying for a competitor, or the security detail just getting annoyed. Photographers fear that overzealous security will be detrimental to both the craft and to free speech; Powazek points out that the proposed, then abandoned, camera bans on San Francisco's MUNI system and the New York subway would have deprived art photographers of a popular haunt.
Carolyn E. Wright, the Atlanta photographer and lawyer behind PhotoAttorney.com and the author of the Photographers' Legal Guide, stresses that nothing in the PATRIOT Act prohibits photography. Indeed, the rules are quite broad: "As long as you're on public property and you can see it, you can take the picture," she says. There are a few limitations: You can't use telephoto lenses that see into private areas your eye could not, you can't photograph in publicly accessible areas that are understood to be private (like bathroom stalls), you have to get model releases from the people you photograph if you intend to use the images commercially, and you can't block access to public areas. If operations like refineries feel their workings are too sensitive to be publicly visible and potentially photographed, Wright said, it's incumbent upon them to hide their property from view. "Smokestacks," she added dryly, "are not a secret."
While Wright noted that art, hobby, and stock photographers like Ritter have the same First Amendment rights as press shooters, she added, "A stock photographer who has no set assignment or designated client, who is just out there trying to collect images for his portfolio, is probably the one who gets stopped more than others." These photographers are uniquely vulnerable because they don't necessarily carry credentials, show up at news events where photographers are expected, or have a client who has handled clearance issues for them beforehand. As David Sanger, an Albany photographer and the board president of the Stock Artists Alliance, pointed out, they often lack legal resources. "If it were a reporter and they were on assignment and chased off, they're probably going to come back with the corporate attorney," he said. "But if it's just a Joe out photographing, sometimes, even if you're right, it's not worth the amount of effort required to deal with it." He recommends that stock artists wanting to shoot sensitive areas like bridges and factories do their best to get permission beforehand.
Sanger, Wright, and Powazek agree: If you're busted, be polite. Explain how you intend to use the photos. Consider carrying your credential, assignment letter, or a "bust card" delineating photographers' rights, like the one downloadable from Krages.com/phoright.htm. Wright cautions that while private individuals like security guards do not have the right to seize your camera, film, or photo card, law enforcement does if you are committing a crime, such as trespassing. If all else fails, Powazek says, and "you know you're going to get screwed, you might as well document your screwing but it's definitely not going to make things better."
What might make things better, Powazek says, is more acknowledgment that photography is a tool as easily used by crimestoppers as by terrorists. "Empowered self-documentarians are actually good for democracy, not bad for it, because they bear witness to everyday life and the reality of our surroundings," he says. "I would rather live in a society where everyone had a camera than no one."
In fact, we may already live in that society. Cheap, powerful digital cameras are increasingly affordable, and the new generation of amateur photographers know the power of self-publishing on the Internet, effortlessly spreading their work around the globe. At last count, Ritter's Rodeo smokestack photos had been downloaded from a stock photo exchange site about seven hundred times. "They're all over the world now," he says.
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