By Donald R. Winslow
© 2009 News Photographer magazine
DURHAM, NC (March 10, 2009) – Back in January the National Press Photographers Association, through its general counsel Mickey H. Osterreicher, asked Amtrak in a letter to stop harassing photographers and to take immediate steps to remedy circumstances where law-abiding photographers working in public places were being confronted by the railroad's police and personnel.
In response, the general counsel for the Amtrak police invited NPPA to participate in a review and updating of their existing policies and suggested that NPPA might want to contribute potential guideline language and input on both the railroad's photography guidelines (for their employees and the public to follow) and on new photography policies for Amtrak police.
Since then NPPA's attorney Osterreicher has been working with his counterpart at the Amtrak Police, David. J. Domzalski, to formulate Amtrak's new photography guidelines.
Today the railroad's attorney told NPPA and Osterreicher that "all of your recommendations were incorporated into the guidelines ...". Domzalski also said that NPPA's recommendations "made substantive improvements" in their new policies.
"I was quite pleased that Amtrak adopted almost all of the language changes that we proposed," Osterreicher said today from his office in Buffalo, NY.
Included in the new policies are orders to Amtrak police to not delete, destroy, or alter photographs and video, along with the directive that they shall not request others to delete, destroy, or alter photos or video either.
"I know that there may be some who do not believe that these guidelines go far enough, but given that Amtrak had no obligation to ask for our input or adopt any of our suggested changes I hope that those people would appreciate that these guidelines are an excellent start, and I hope that those guidelines will help avoid future confrontations over photography."
"It is also quite instructive to see what language NPPA was able to have deleted," Osterreicher said. "Amtrak originally proposed that 'Photography that requires explicit authorization from Amtrak includes ... activities for documentary and educational purposes.' Those references are no longer there."
As a result of his work, Osterreicher's back-and-forth collaboration with Domzalski had an impact on both the railroad's new photography guidelines as well as Amtrak's new instructions for the railroad's police officers.
"This is a great example of how NPPA can work together with government agencies to modify policies that we feel are restrictive of First Amendment rights," NPPA president Bob Carey said today.
"This change in Amtrak policy is certainly a result of the NPPA Advocacy Committee acting on a complaint by photographers, and then working behind the scenes to try and change the railroad's policy. If it were not for Advocacy Committee chair Alicia Wagner Calzada and Osterriecher working together for long hours, this change may not have occurred so quickly."
"When Region 2 director Todd Maisel first brought the Amtrak situation to our attention, Calzada and Osterriecher began working on this issue. Maisel has been a longtime supporter of photographers rights and we discussed how NPPA needed to weigh in on this matter. I realize at times that it may have appeared to disappear off our radar, but the Advocacy Committee has been working long and hard behind the scenes," Carey said.
After working with NPPA on the language, today Amtrak's new photography guidelines have been published here on the railroad's Web site.
The key information for photojournalists in the new guidelines is the language "Members of the news media are entitled to the same access for photography purposes as the general public," and that news media can request additional access through the railroad's media relations office.
The guidelines also ask journalists to wear valid press credentials, in sight, while working in public areas, and while Amtrak requests that news media contact the railroad's media relations office before shooting, the guideline states that Amtrak "understands that during breaking news events advance contact with Amtrak's media relations office may not be possible."
In instances that are not breaking news, the new policy invites media to contact Amtrak's media relations office in advance because in some instances the railroad might be able to issue a letter that the photographer can carry with him while shooting in the Northeast, Chicago, and California regions (which may help with dealing with railroad employees in some instances).
The railroad's new guidelines are in four sections: Policy, Definitions, Exceptions, and Law Enforcement.
The Policy section deals with where photographers (media or civilians) can take pictures, which is within public access areas on Amtrak property. Photography in areas posted as restricted is prohibited, including "where Amtrak may be promoting a photography contest or event."
The Definitions section deals with "commercial and special photography," such as work being done for a movie or television or advertisements where there is "commercial gain or profit," and defines photography to mean both still and video capture. It also spells out what areas are considered public and restricted (defined as any area not open to the pubic or occupied by the public, including but not limited to platforms [ticketed passengers are exempt], crew and employee work areas, maintenance facilities, unoccupied trains and engines, office areas, employee elevators, baggage areas, commissaries, right of way and track areas, and in-service train cars).
The Exceptions section deals with the guidelines for news photography, commercial and special photography, as well as where ticketed passengers may shoot on platforms and on trains.
An important aspect of the new photo guideline says that while nothing in the new photo policy limits or expands the authority of Amtrak police to investigate what a photographer is doing, "the taking of photographs and/or video may not, in and of itself, rise to the level of reasonable suspicion or probable cause."
"My only caution is that while Amtrak operates nationwide many of its stations and right-of-ways throughout the country are operated by an array of property management companies," Osterreicher said. "Those companies may or may not adopt these guidelines. Unfortunately the public has no way of knowing that when all they see is the familiar Amtrak logo. I still strongly believe that regardless of the ownership public areas are considered a public forum where first amendment protections for photography would apply."
The Law Enforcement section will also be of interest to journalists because it spells out how Amtrak police are to approach photographers and videographers. They can do so, the railroad says, when they either receive a complaint about suspicious activity from a member of the public or when they themselves observe suspicious activity. As a result, when Amtrak police approach a photographer they are to advise the photographer that an inquiry is being conducted "for security purposes," and that Amtrak police are to follow the newly established departmental regulations.
"As for the new Amtrak Police General Order 09-02 issued February 27, 2009, I think it extremely important that Amtrak changed the language in the order from making it sound like photography was a negative or pernicious activity to one that's presumptively benign unless it is accompanied by other behavior that gives rise to probable cause, or a reasonable suspicion that would merit further investigation," Osterreicher said.
The original draft for the new Amtrak Police Order read:
Characteristics of target marking, according to terrorist profiles studies, also include photography and video recording activities. The photographing and video recording of trains, stations, and infrastructure locations (i.e., bridges, overhead electrification systems), is common around railroad operations ... We have formerly associated this kind of activity with rail fans, tourists, professional or amateur photographers, and the news media. However, in today's environment, it is not prudent to assume that the photographing and/or video recording of our stations, trains, passengers, and right-of ways are always innocent acts we can attribute to tourists or curiosity seekers. Instead, we must conduct an inquiry and/or investigation, when necessary and appropriate, to determine if these activities are innocent or an attempt to collect intelligence for illicit reasons.
But the newly adopted language instead states:
While there is a presumption that photography/videography of our stations, trains, passengers, and right-of ways may be innocent acts of rail fans, tourists, professional or amateur photographers and the news media, officers should remain vigilant should such activities be accompanied by other suspicious behavior. In those cases, officers may conduct an inquiry and/or investigation, when necessary and appropriate, to determine if these activities are innocent or an attempt to collect intelligence for illicit reasons.
"This change is something that I felt strongly about, because no matter what guideline language followed I believe their original characterization of photography/videography in such sinister tones created an atmosphere of initial distrust and suspicion, which led to many of the recent problems we're now trying to avoid. Public photography/videography is a protected First Amendment right of expression limited by reasonable time, place and manner restrictions. The key word here (as in most cases) being 'reasonable.'"
Osterreicher said, "The newly revised ‘policy’ is written in bold print and states that 'It is the policy of Amtrak that the taking of photographs and/or videos is permitted within public access areas on Amtrak property.'"
The new order also states that while “Officers may request that an individual consent to release of a recording, film or picture. Any consent must be knowing and voluntary. Under no circumstances will officers delete, destroy or alter photographs/videos; nor shall they request that photographs/video be deleted, destroyed or altered. (The bold underline is in the order.)
The order also says, "Photography and/or video recording equipment will only be seized pursuant to an arrest, and only as evidence to support an appropriate charge (e.g., an individual arrested for trespassing has recordings or pictures from areas that demonstrate the trespass)."
"It was a pleasure to work with Amtrak's David Domzalski. He was extremely helpful and open to NPPA’s suggestions and input," Osterreicher said. "I also would like to thank Jason Criss of the Washington, DC, law firm of Covington & Burling, who represents the New York Press Photographers Association. He was also able to review the proposed guideline language and make suggestions."
"The real challenge now will be to inform and educate Amtrak police and personnel about these guidelines as well as to make sure that our members fully understand what is permitted," Osterreicher concluded.
