June 20, 2007
The Sidewalks Are Yours, Click Away
We've been watching the Flickr discussion boards blow up lately about the banning of photography in supposedly public places. One user has posted in every D.C. related group with his recent story, and another user, katmere, has had so many confrontations with police and security guards that she started her own group last week called DC Photo Rights, where folks are asked to "[p]ost photos that you took in 'banned' locations, or photos when you been asked to stop taking legal photos."
Flickr user chippy314's story is particularly ridiculous. He was taking pictures from Ellsworth Avenue in Silver Spring, when he was told by a security guard that photography was not allowed, despite chippy314's protestations that he was standing on a public street. Or was he? As the guard suggested, he went to the management office of Peterson Companies, the development agent contracted to rebuild the area, and was told, "Downtown Silver Spring including Ellsworth Avenue is private property, not a public place, and subject to the rules of the Peterson Companies."
No, no, no, my friends. Sidewalks and streets are paid for with taxpayer money and generally considered to be public space. The local government can make certain rules regarding these areas (e.g. shovel your walk during winter), but a private company prohibiting an act such as photography from the sidewalk outside their establishment just doesn't fly. And no, 9/11 didn't change that.
We're not talking about secure government facilities or even the Metro -- where actually, as we've already discussed, non-commercial photography is explicitly allowed -- so are these photographers just getting hassled by uniformed authority figures who bank on camera-wielding folks not knowing the law? In a couple words: hell yes.
Photo of Silver Spring establishments by katmere, who was then confronted by a security guard and told she was not allowed to take photos in Metro Plaza.
As we noted in our discussion of Metro photography, you have the right to take photos in public places, and if you need some language to back that up, print out The Photographers Right and keep it in your camera bag. Keep in mind that private entities have no right to take your camera or your film without a warrant, and this includes security guards on Ellsworth Avenue or at the Ballston Common Mall (though keep in mind that if you are inside a privately owned venue, they can prohibit the actual taking of photos and ask you to leave if you do not comply; once you've taken the photo, they need a court order to take it from you.)
Flickr itself has been in the news lately for its new "SafeSearch" filters, which can restrict viewing at three levels. Most Flickr users can change their settings to their own comfort level, but users in Singapore, Germany, Hong Kong and Korea have their filter permanetly set at the highest level. Members have expressed their outrage on message boards, both because of the general censorship, but also because Flickr's views on what's safe and what's not seems to be more than a little vague -- before I turned my filter off, it was blocking a friend's photo of a couple of women, fully dressed, holding a bra.
Though the banning of photography and the censorship of photos may be two different issues, the result is unwanted interference with our rights as citizens. The latter issue has steadily become a losing battle between the idealistic information-for-all sources that internet companies initially strove to be, and governments who threaten to cut off total access if censors are not put in place. While the former is The Man strong-arming citizens where they've not the authority to do so, and is, at least, one issue people can fight if they simply learn their rights and stand up to those who seek to curb them.
|
It is possible that the sidewalks are owned privately. If that's the case, then most likely the developer was required to grant the public an easement across them for pedestrian access. Such easement was likely recorded in the land records for MoCo. I highly doubt that the easement for pedestrian access has a restriction for photography.
If the sidewalk is not privately owned, it is most likely part of the Md DOT public right-of-way. Again, I doubt that such photography restriction exists in the right-of-way.
The downtown Silver Spring issue is particularly scary and it's a big piece of why using shopping malls to replace our coherent downtowns was so damaging. You have no right of assembly under a private roof without expressed consent, and if there are no common areas left that are not left to developers and if people no long congregate together in public on the street we have implicitly given away our right to protest, assemble, and rally.
Being questioned by the police (or a security guard) when you have a perfectly legal right to take a photograph has a chilling effect. Being stopped by the police and asked for ID is unnerving; it's upsetting. And it's wrong.
There's nothing inherently suspicious about taking photographs in public. And when you think about it, the bad guys are going to take photos in ways that are much less obvious.
In the United States you do not have to show identification to take a photograph in a public place. In the United States you don't have to explain yourself when what you're doing is perfectly legal. Or at least that's the way it's supposed to be.
katemere and chippy314 are performing an important service through their Flickr DC Photo Rights Group.
As far as, "we built the sidewalk, so it's private" goes, that's crap. Developers are required to pay for a lot of improvements to utilities, roads, sidewalks, etc. that are adjacent to and/or affected by their project, as a condition of plan approval. That does not make those things privately-owned in any way. Not that I know anything about Silver Spring's development regs...
Ask them to arrest you and watch them wilt.
We've been watching the Flickr discussion boards blow up lately about the banning of photography in supposedly public places.
Just to be clear as to what these photographers are dealing with, let's stop throwing the word "ban" around. We're most likely talking about ill-informed security guards going too far in their enforcement of rules governing private property (and perhaps those rules are unlawful and need to change). But unless MoCo has passed a law we don't know about, there is no "ban" on photography.
Well, the Peterson Companies seem to think they've implemented a ban. You're right in that there isn't actually a ban imposed in any of these places, legally speaking, but that's sort of the whole issue. Unless someone has done their research into the rules and regulations concerning photography everywhere they go, having an authority figure approach them and tell them they cannot take photographs turns out to be a de facto ban, albeit an illegal one. Even if you know the rules, an unbending security enforcer is enough for most people to put their camera away and leave; like Bill said above, the chilling effect may as well be a ban.
Unless someone challenges it. Bitching about a "de facto" ban is pretty much the course of least resistance.
Not that DCist is bitching. DCist is informing the public. Big Diff.
I can't tell if you're joking or not, Mark, but if you read the post again you'll see "challenging it" is kind of the whole point of the write-up, as you can see, e.g., in the last line, "and is, at least, one issue people can fight if they simply learn their rights and stand up to those who seek to curb them." Of course, no one will challenge it if they don't know the law, so we hope more folks will be able to do so now.
I'm guessing you missed my 5:17 comment.
What these private dicks are doing is nothing new. I encountered the same as a bike messenger (You can't lock your bike there!) in the mid 90's.
Tell them it's PS, tell them to arrest you. They won't, 'cause they can't.
Don't try it with Capitol Hill police, though. Those guys were off the hook even pre-911.
The definition of public vs. private can get a bit dicey when you factor in "public streets" that are actually owned by homeowners associations, business associations, or even other government entities.
Case in point:
Several years ago one of the New York TV stations was doing a story on racial profiling on the NJ Turnpike and was filming cars driving along and being stopped by police on the turnpike. The news crew was cited by the NJ State Police for trespassing since they were filming on "private property" without a permit from the owner. The owner of the NJ Turnpike, it turns out is the NJ Turnpike Authority which, while an agency of the state of NJ, is considered a private landowner. So you can film along any highway in NJ, except the Turnpike, Parkway, and AC Expressway, since those are considered "private property" owned by the state.
Confusing? yes. But apparently the NJ State Police were in the right as the TV station lost when it tried to contest the ticket in various NJ courts.
I could see the same logic being applied to the Dulles Toll Road and Greenway and perhaps even streets "owned" in some way by a local business improvement district.
I don't know how BID's operate in MD. In DC, anyway, don't nearly own the streets or sidewalks. They pretty much just tax for and deliver services above and beyond what the city can do.
I suppose if the place was owned and built, not just maintained, by a BID (or other quasi-private entity), things might be a bit more murky. I somehow kinda doubt Silver Spring falls into that category, though.
That said, the NJ case you cite suprises me.
Thanks, DCist, for picking up this story.
I thought that this article was going to be about the end of DC sidewalks being taken over by building construction; no more will we have to switch sides of the street every two blocks or risk being run over while walking in the street because the sidewalk has been removed in order to place construction materials on them.
"McPherson Square: Hi George.
It seems like in NYC, more of an effort is made to accommodate pedestrians during construction. Here, it seems like the model is to close the sidewalk as long as needed, often with little signs to warn one that they may be crossing to that side of the street only to have to cross back. What thought is given to this?
George Branyan: The issue of pedestrian access in work zones has become a critical problem in recent years with all the new construction. I'm happy to say that DDOT's Public Space Admin. has just drafted new regulations that will require construction to be done completely on private property, with any sidewalk closures to last no more than one week. These new regs were written after discussions with NY City staff. Covered walkways will be required to protect pedestrians during construction."
www.washingtonpost.com/wp-dyn/content/discussion/2007/06/07/DI2007060701407.html
Lionel: Wow. Thanks for passing that info along. It's huge. Amazing. DCist Ian and Ryan, check it out.
Even if it's the case that the Peterson Company was somehow given ownership of the actual street and sidewalk, that doesn't necessarily give them the right to restrict photography on that space. There's a large body of law (varying from state to state) helping to define when certain types of spaces should be treated as public space. I haven't researched MD law, but I think it's highly likely that a street, connected at both ends to public ways, completely and permanently open to any person passing through, should be the kind of space that is treated as public even if it's privately owned.
(And, as others have noted, even if it were privately owned the owner almost certainly had to give an easement permitting public access. Otherwise, Peterson would be free to shut the street down to traffic any time they wanted to. Surely the local government took steps to prevent that?)
The Tollway and Greenway are owned by private companies.
Also (blanket statement ahead, and I know it doesn't apply to every commentor), I notice a tendency on these comment boards to take shots at developers/development. I work in that industry, and while there are some things that individual companies do or build that I don't like or agree with, most are committed to building that helps to make this city great. And done with some (if not a huge) level of support from the governing jurisdiction and the local community. So next time you're ready to bad-mouth the development community, just think back to what a disgusting pit the area around Chinatown was 10 years ago when you're eating at Rosa Mexicano after a Wizards game.
Marc Fisher has picked up this story:
www.washingtonpost.com/wp-dyn/content/article/2007/06/20/AR2007062002354.html
I wouldn't say Fisher picked up the story....remember, the paper goes to bed a day before you read it. His was probably edited and ready to go at the same time DCIST got on the story. The flicker folk have been spreading the word like wildfire in hopes that someone would pick up the story.
The section of Ellsworth Dr. in question is more of an outdoor mall than it's really a public street. The street is often closed, creating more of an open plaza than a thoroughfare. I wouldn't be surprised at all to find out that Peterson owns it all.
That's not to say they have the right to ban photography there, but whether or not it's legally public or private space isn't really that clear.
Wasn't this Silver Spring development heavily subsidized by the city/county/state?
If so, this development group can get bent. If you take money from the public trough, you can't go saying it's 'private property' when it comes to innocuous things like taking pictures.
WaPo stole your thunder, reporting the same story in the Style Section Today (6/21/2007), without a single reference to the fact that DCist broke it yesterday!
For what it's worth, since everyone is patting themselves on the back, the "Silver Spring, Singular" blog had the story a week ago.
No matter who broke the story, Metroblogging DC is going to do something about it. We're having a deceleration of photography freedom, a Silver Spring photo outing on the perfect day: July 4th.
dc.metblogs.com/archives/2007/06/maybe_photograp.phtml
We should hold up a few American Flags and take pictures while we sing to the tune of Alices Restaurant.
You can't take any photos no more on Peterson's Private Street
You can't take any photos no more on Peterson's Private Street
Walk right through and try to take a shot
Security'll hound you and tell you to stop
You can't take any photos no more on Peterson's Private Street
Better Get BIG Group W Bench Mr Peterson here we come!!
Chip
Yay Metroblogging DC!
Good morning.
Thank you for all of your support for this.
We have had excellant support from the Flickr community, Bloggers, The Post and TV. Metro Bloggers are planning something along the lines of "throwing some tea overboard". Last night at a planning board meeing a citizen asked the planning board if photography would be allowed at the privately run skating rink they will build in Silver Spring on the public land now covered by a tarp.Noone answered. I am very excited about all of this. But we need to take things to another step.
The Peterson Group has yet to respond to any of this. They only issued a statement sticking to the company line about protecting themselves from those who paid for their shopping mall.Gary Stith,the counties main man in Silver Spring talks about this like he works for Peterson and not the people of Silver Spring.Stating talking only about the corporations rights. Im certain they are waiting for all this to blow over.
If you are from Montgomery County please take a few mintues to contact your elected representatives. Let them know you feel strongly about this. They are the ones who can force Peterson to the table and remind Mr Stith who he works for.Ask each council memeber how they feel about this. Only Marc Erlich has done this.
Go to the Mont Co home page. The council contact info is available there. (I cant seem to post the link here, it's on the Flickr DC Photo Rights Page)
See you anywhere but Downtown Silver Spring
Chip Py