When did videotaping become a crime?

Several recent incidents suggest a disturbing new trend: public safety officials targeting photographers, including professionals. “Cops don’t want to be identified,” says Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press. “They don’t want their pictures taken.”

The relationship between journalists and police officers has always been tense, of course. “They’re both aggressive professions, and sometimes they get in one another’s face,” says John Timoney, former police chief in Miami and Philadelphia.

But something clearly has changed. “It used to be guys with a reputation for not following orders” who wound up in confrontations with police, Dalglish says. “These days, it’s folks keeping their mouths shut and doing their jobs.”

In the Milwaukee case, Fillinger was charged with obstructing a police officer after he objected to being forced back “for safety” while members of the public were allowed to stay put, watching the house fire from across the street. His boss concedes that he used an expletive and raised his arm when the officer closed in on him, but says the arrest was not justified.

“While the language was coarse, I truly believe Clint had no intention of touching the officer, and the whole thing certainly did not rise to the level of being dropped to the ground and handcuffed,” says Jim Lemon, news director at Milwaukee’s Fox affiliate, WITI. “It was a bad spur-of-the-moment decision made by the police commanders on the scene.”

Two recent cases in Suffolk County, New York, reflect similar bad decisions. In late July, a photographer for a local TV news service was arrested while videotaping the end of a police chase. An officer ordered Phil Datz to leave the scene, even though he was standing on a public street with other people. When Datz asked where he was supposed to go, the officer responded, “I don’t care where you go, just go away.” After Datz set up in the next block and started shooting video again, the officer jumped in his squad car, raced up to Datz and arrested him for obstruction. The charges were dropped.

A few weeks after that incident, an emergency services official in the same jurisdiction manhandled a photojournalist for New York’s NBC-owned station, WNBC, as he tried to videotape the cleanup of a chemical spill. The official grabbed the photographer’s camera and tried to wrestle it away.

What’s different now, some say, is the proliferation of cellphone cameras on the street combined with heightened concern about terrorism. “I think that post 9/11 police treat everyone with a camera as suspect,” says Mickey Osterreicher, general counsel for the National Press Photographers Association. “In certain instances, news photographers are singled out because of their high visibility.”

Photojournalists aren’t the only ones who have been targeted. Cases are pending in several states against citizens who have been arrested and had their cameras confiscated after videotaping police action. And the arrests keep coming, even though the police keep losing in court. The latest ruling, from an appeals court in Massachusetts, said the First Amendment “unambiguously” protects the right of citizens to videotape police officers performing their duties in a public space. Journalists clearly deserve the same protection.

“The press may have no greater rights than those of the general public,” Osterreicher says. “They certainly have no less right of access on a public street.”

Police officers should know better than to run anyone in just for taking pictures. “We tell them constantly at the academy, ‘Take it for granted, you’re going to be on camera,’” Timoney says. “Everybody has a camera and they’re entitled to use it. We police have to suck it up.”

Journalism groups say officers need training to make sure they understand the rights of professionals and citizens alike to take pictures of police activity in public places. But Timoney doubts that more training is the answer. “If police don’t understand this now, all the training in the world isn’t going to help.”

Piling up victories in court probably won’t help either. When charges against photojournalists are dismissed, as they inevitably are, the police officers involved pay no penalty and face no sanctions. Suing for false arrest might make a difference, Dalglish says, by hitting the police department where it hurts – in the budget. But it’s unlikely any cash-strapped news organization would be willing to shoulder the cost of a lawsuit just to make a point.

So what’s to be done? Keep shooting, I say. Nothing makes a better case for the First Amendment than good video of a police officer behaving badly.

Originally published by American Journalism Review, December 2011

Every reporter eventually runs into a story so important that it’s worth getting the information on a confidential basis. But you’d better understand your news organization’s position on unnamed sources before you make any promises.

Many newsrooms require a supervisor’s approval before confidentiality can be ensured. That usually means the boss will need to know the source’s identity, and the source should be aware of that before making any deals. But how many others in your news organization will be told the name of your source? And how far will your bosses go to support a confidentiality agreement? Will they protect you from having to turn over notebooks or raw tape? Will they pay for your legal defense if you’re found in contempt for not disclosing the identity of a source?

At a recent IRE workshop, Josh Meyer of the Medill National Security Zone emphasized the importance of establishing ground rules up front that apply to both journalists and their sources. “Let them know that if you find at any point that they have lied to you or misrepresented the facts, the deal may be off,” he said.

Lawyer Bert Bruser, counsel to the Toronto Star, advised journalists to avoid leaving any paper trail that could identify a source. Don’t write the name in your notes, he said, don’t mention it in email, and get rid of any documents with the source’s name on them.

Better yet, don’t quote or refer to unnamed sources in your stories. Instead, “use anonymous sources to point you toward key documents, data or story ideas,” panelists said.

One other obvious piece of advice: make sure you and your source agree on what you mean by the words you use when discussing ground rules. I’m always taken aback by the number of journalists and officials who think “background” means “off the record” and vice versa. This glossary of interviewing terms covers the most common ground rules.

Be aware, too, of the perception by some PR professionals that there really is no such thing as “off the record” and who may be counseling the people they advise not to provide any information on that basis.

These two incidents three years apart spotlighted a trend by local law enforcement to use state wiretap laws against people who record police actions, even as the police themselves make widespread use of dashboard cameras to record citizens. The claim is that the citizen recordings in some states violate the law because they capture audio without the consent of both parties.

The Maryland case eventually was thrown out by the state attorney general. Now, an appeals court has ruled in the Massachusetts case that the First Amendment “unambiguously” protects the right of citizens to videotape police officers performing their duties in a public space, according to attorneys Kathleen Kirby and Maria Mullarkey of the law firm Wiley Rein:

The court cited precedent firmly establishing that videotaping of public officials is an exercise of First Amendment liberties and observed that gathering information on government officials protects free discussion of government affairs, aids in the uncovering of abuses, and promotes effective functioning of government.  Although the right to film is subject to reasonable time, place and manner restrictions, the court opined that the peaceful recording of an arrest in a public space that does not interfere with police duties is not reasonably subject to limitation.

That’s good news for journalists and news organizations, who can’t be everywhere but who can and do use video captured by citizens in covering the news. But the appeals court victory in the Massachusetts case brought by the American Civil Liberties Union is just one step forward. Other cases are still pending. Just last week, the ACLU filed suit in Maryland on behalf of a man who says his camera was confiscated after he videotaped an arrest.

Maryland and Massachusetts are two of the 12 states that generally require the consent of all parties to record a conversation. The others are California, Connecticut, Florida, Illinois, Michigan, Montana, Nevada, New Hampshire, Pennsylvania and Washington. But in almost all of these states, the Huffington Post points out, “in order for someone to be prosecuted for recording a conversation, the offended party must have had a reasonable expectation that the conversation was private.” Generally speaking, police officers carrying out their duties in public don’t have an expectation of privacy. Consult the Reporters Committee for Freedom of the Press guide, Can We Tape?, for details on state laws. And stay tuned. This issue is likely to come up again.

Consider this clip from Tuesday night’s NBC Nightly News report on the East Coast earthquake by correspondent Lester Holt:

That shot of the collapsed wall must have looked familiar to the YouTube user who posted this video from Tysons Corner, Virginia, racking up more than a quarter of a million views in less than 24 hours:

Putting that video on the air may qualify as fair use, but NBC never mentioned where the video of the collapsed wall came from, airing it full-screen with no chyron.  While that may or may not be a violation of copyright–and case law in this area is still evolving–I’d argue that the lack of attribution is a problem.

Most stations I contacted said it’s their policy to credit video to YouTube.  ”Almost every instance where we use it is a fair use instance where we are commenting on the video,” says news director Stacey Woelfel of KOMU in Columbia, Missouri. “We always super it as YouTube video.”

At KUSA in Denver, reporter Kevin Torres says the station’s policy is to attribute video to YouTube, either with a CG or in narration. “We don’t typically use someone’s YouTube handle,” he says.

“I would argue that it’s a transparency issue– letting viewers know and see where you got the video,” says news director Dan O’Donnell of WGAL in Lancaster, Pa. “It’s also a last resort.  We make EVERY effort to reach the person who posted the video on YouTube to see if we can get the original emailed to us– or posted on our own UGC website, ‘U-Local.’”

And then there’s radio. The Voice of America’s guidelines prohibit the use of audio from YouTube videos on the grounds that “YouTube’s terms of service stipulate that embedded content cannot be manipulated or downloaded for use away from www.youtube.com.” VOA reads that to mean that video can’t be downloaded either, so it requires any YouTube video that’s shown on TV to be shot within its actual YouTube page.

We haven’t even touched on the most basic question you have to ask when considering YouTube video: Is it real? Contacting the poster, as WGAL attempts to do, is one key step in verifying not only the source of the video but the truthfulness of the content.

Does your station have a policy or guidelines on the use of video or audio from services like YouTube? If not, maybe it’s time to develop some.

The Internet is a treasure trove of multimedia but it’s important to make sure that what you find is really OK to use for free. Copyright laws do apply to online material, and saying you found it online won’t get you off the hook if someone decides to take legal action.  It doesn’t matter if you’re not making money from the content. As Mark Luckie warns, “If you copy and use something created by another person you may be violating their rights to their work.”

So what can you do? Look for material that’s in the public domain or under a Creative Commons license. Serena Carpenter at Arizona State University has compiled an excellent list of sites to search for images.  Among them:

• Creative Commons search, a one-stop site for scanning Flickr, Google, Blip.tv and Jamendo (for music).
• EveryStockPhoto, which claims to have 7 million free photos in its database.
• Wylio, which calls itself “the fastest image-finder for bloggers.”
• Wikipedia public domain resources, a meta-list of searchable sites.

Once you’ve found what you need, be sure to double check the license. It’s always a good idea to say where you got it and link to the original source, if possible.

Do you have other favorite sites for finding material that’s free to use online? Share the wealth!

The guide breaks privacy law into four main categories: unreasonable intrusion, public disclosure, false light and misappropriation. But here’s the bottom line:

Generally, what can be seen from public view can be photographed without legal repercussions. Photographs taken in private places require consent.

Sounds simple, but it isn’t always. It may depend on who consents. You have to be sure that the person who gives the OK actually has the authority to do so. In some states, for example, a journalist can’t enter a private home unless the person living there approves–even if a landlord, police officer or fire official grants permission. And being allowed in does not mean you’re automatically allowed to shoot. To be protected under the law, you need to specifically ask for consent to photograph.

And video doesn’t have to be broadcast or streamed online for a photojournalist to be liable for intrusion. “Intrusion can occur as soon as the image is taken,” the guide says. That could make it risky to shoot first and ask for permission later.

NOTE: The information presented here is not intended to be legal advice. Please consult a lawyer if you want professional advice for your particular situation or state.

Even if you shoot video in a public place, the guide warns, “beware of the context in which the picture is placed.” Let’s say you’re doing a story about Internet porn. Generic video or file footage of people using computers might imply that those individuals are accessing porn, even if what you say in your narration makes it clear they aren’t. That’s false light and it can cost you.

One station I know of got in serious trouble for using generic video of people eating in public in a story about a high fat diet being linked to breast cancer. In the aftermath, the news director put out this simply worded policy:

Do not use generic cover video that includes people who are 1) not directly connected to our story but are 2) easily identifiable and 3) may not be aware they are being photographed. In cases where it is reasonable to do so, let people know you are photographing them. Never use video that could be embarrassing to someone not connected to the story you’re telling. Use great care in editing not to passively violate someone’s privacy. When in doubt–leave it out.

Misappropriation involves using a person’s image for monetary gain without that person’s permission. Using news video in a commercial could open a station up to a privacy claim, but that’s not the only potential problem. Even if you can legally use a piece of video on your newscasts, if you sell it or trade it for something of value, like network satellite time, you could be liable.

The RCFP guide covers lots of other possible situations. Read it, bookmark it, share it.

B

His case is just one of a series of high-profile discrimination suits filed against local television stations in the past several months. Veteran reporter Shelly Sindland charged her employer, Tribune Co.-owned WTIC in Hartford, with age and sex discrimination, claiming she was passed over for assignments and subjected to degrading comments about her looks. Three on-air female journalists at KMBC, the Hearst-owned station in Kansas City, filed a similar complaint, alleging “a hostile environment, permeated with threats, intimidation and disrespect.” And former Houston anchor Wendy Corona sued for defamation and breach of contract after KPRC abruptly let her go. All of the stations have denied wrongdoing.

Taking legal action against your employer and going public about it used to be rare in TV news. Rick Gevers, an agent who has represented on-air talent for more than a dozen years, has never had a client file a discrimination case, but he knows what his advice would be. “I would caution them that it’s a small industry and it could be difficult to find that next job because of that” complaint.

So what’s changed? The economy, for one thing. Discrimination complaints always jump during a recession; according to the federal Equal Employment Opportunity Commission, complaints in all industries were up 15 percent last year compared with 2007, the latest data available, and age discrimination charges increased 30 percent.

“Employers may think that because they are doing layoffs, it gives them cover for discriminatory activities,” says Paula Brantner, executive director of Workplace Fairness, an employee advocacy group. But, she adds, workers who believe they’ve been discriminated against are more likely to bring charges when the economy is sour. “Instead of moving on, people are unemployed, sitting home stewing or taking a job outside their profession at a significant pay cut,” Brantner says.

But many of the recent complaints against local TV stations have been brought by people who still work there–or did at the time they filed–and they haven’t done it quietly. Conventional wisdom says they should be grateful to still have a job in a shrinking industry. But as newsrooms cut staffs and slash salaries, highly paid anchors and reporters may be more willing to fight it out in court and in public to keep what they have.

“Now you have a whole different group of plaintiffs who’ve made a conscious decision that airing this in the press has value to them,” says William Perkins, an employment attorney at Seyfarth Shaw LLP in New York who has represented both ABC and NBC. “We may be entering a new phase with more trials because employees have nowhere to go.”

For Christine Craft, there’s a sense of déjà vu about all this. A quarter-century ago, she was demoted from TV news anchor to reporter after being told that focus groups found her “too old, too unattractive and not deferential enough to men.” She sued and won twice, but the verdicts were thrown out on appeal. The station involved? KMBC–the Kansas City station now being sued again for age and sex discrimination.

“You’d think they would have learned something by now,” says Craft, who left television to become a lawyer and radio talk show host in California. “I think they’ve got short memories,” says attorney Dennis Egan, who represented Craft and is handling the current KMBC case, in which two of the plaintiffs charge they were demoted as anchors, while older men kept their positions and younger women were promoted.

But what’s to remember, exactly? KMBC and its owner at the time, Metromedia, never had to pay Craft a dime, and the company’s litigation expenses were tax deductible. As for other costs, “There is a risk in terms of public image,” says Perkins. “How long it lasts in the public mind is hard to say.” Twenty-five years after the Christine Craft case, it seems local television stations may be more worried about their survival than their reputations. Viewers already are tuning them out. Revenue is down. What do they really have to lose in a public fight against a discrimination claim?

Charles Perez, on the other hand, may have already lost his career. “I’ll probably never work in the news business again,” he wrote.

Years ago, when the TV news business was financially healthy and growing, Perez and the other plaintiffs might not have taken that risk. But these days, it seems, there’s no good reason to worry about burning a bridge to nowhere.

This article was originally published in American Journalism Review, December/January 2010

While the policy was modified slightly by U.S. Customs and Border Protection in August, it still allows devices to be seized and held for up to five days, and even longer under certain circumstances. It covers laptops, cameras and cell phones–all the tools of the trade–and according to the Reporters Committee for Freedom of the Press, some journalists have been affected.

The Department of Homeland Security says the overall numbers are small so far, according to TechNewsWorld, with just a thousand laptops searched in a ten month period during which more than 220 million people came in or out of the United States. Still, the NPPA wants to know the impact of the policy on its members, who all received an email this week asking them to answer these questions:

-Have you ever had your laptop, cell phone or camera searched when entering or exiting the U.S. ?

-Have you ever had the contents of your laptop, cell phone or camera copied when entering or exiting the U.S. ?

-Have you ever had your laptop, cell phone or camera seized when entering or exiting the U.S. ?

-If someone else employs you, does your employer have a policy about traveling internationally with laptops, cell phones or cameras?

-Do you avoid carrying confidential business or personal information on your laptop, cell phone or camera due to the suspicionless search policy?

Are other journalism groups asking the same questions? Shouldn’t they?

Tom Curley of the Associated Press and Rupert Murdoch of NewsCorp are putting those of us in the blogosphere on notice: Re-publish our content and we will make you pay.

According to an AP story, the two men made their comments addressing the World Media Summit in Beijing.

“The aggregators and plagiarists will soon have to pay a price for the co-opting of our content. But if we do not take advantage of the current movement toward paid content, it will be the content creators — the people in this hall — who will pay the ultimate price and the content kleptomaniacs who triumph,” the News Corp. chief executive said.

Curley spoke out about the AP’s new plan to track down people who use the organization’s material without permission. (Can you say RIAA anyone?)

The AP already plans to roll out a system, called a news registry, that will track its content online and detect unlicensed uses in ways that could help boost revenue for the not-for-profit news cooperative, which was founded in 1846, and its member newspapers. The system will be tested in six weeks by nine newspapers as well as a sports statistics provider run jointly by AP and News Corp.

The AP and its member newspapers contend that unauthorized use of their material is costing them tens of millions of dollars in potential advertising revenue at a time when they can least afford it.

It’s unclear whether a post such as this one and others on our site would be targets. We do our utmost to avoid plagiarizing by diligently sourcing our material, but certainly no one gave us permission to use the AP story that provided the basis for this discussion, so perhaps we are “content kleptomaniacs?”

But where does fair use play into all of this? And is this really the right move for content creators?

If most Web traffic comes to news sites through search engines these days, don’t the newsrooms need the search engines, too?

Of course, Curley and Murdoch are right that they are losing money and aggregators and bloggers are surely partly responsible; I’m just not sure this is the solution.

Sourced from: Advancing the Story

What’s really significant is the bill’s definition of who would be protected. Just a few weeks ago, the Obama administration was pushing to cover only salaried employees or independent contractors for a news organization, says media lawyer Kevin Goldberg. That would have cut out most student journalists and bloggers like Josh Wolf, who was jailed for a month in 2005 for refusing to hand over unaired video he shot at a protest. But the new proposal apparently extends coverage to anyone involved in gathering and disseminating news information, according to a statement from Sen. Arlen Specter.

It could still get tricky if the government alone gets to decide who is a journalist for the purposes of the law. But the compromise moves in the right direction by leaning toward what the lawyers call a functional test, based on what a person does, as opposed to a status test, based on who that person works for. That strikes me as a much more realistic approach in today’s media world.

According to the New York Times, the government could still force reporters to identify sources if prosecutors could show it would help prevent or mitigate a future terrorist attack or other future acts that are “likely to cause significant and articulable harm to national security.”

Lucy Dalglish, executive director of the Reporters Committee for the Freedom of the Press, is quoted as calling the compromise “a huge deal but…not a done deal.” It may not be everything journalism groups wanted, but it would at least give reporters a shot at protecting confidential sources in federal cases, something they don’t have now.

That’s crucial, because even journalists who work in one of the 36 states or the District of Columbia that has a shield law may find that a story they’re covering turns into a federal case. Just ask WJAR-TV’s Jim Taricani, who protected a source for a story about corruption at City Hall in Providence, RI, that led to federal racketeering charges. Refusing to name his source in federal court got him sentenced to six months of home confinement.

Here’s hoping the deal turns out to be real.