This pubslished in the Jan-Feb 2021 issue of News Photographer magazine. We thought we would publish it here for wider sharing.
In the aftermath of the events of Jan. 6 in Washington, D.C., we have heard from several members contacted by the Department of Justice (DOJ) and the FBI seeking their images — published and unpublished as well as broadcast and unbroadcast — to be used as part of their investigation and prosecution.
For those NPPA members not on staff or on assignment for any news organizations, we have responded on their behalf to those requests for voluntary compliance by explaining that the journalists respectfully decline to provide any unpublished or unbroadcast material and directed those authorities to avail themselves of material already made public. To date, we have yet to see any actual judicial subpoenas for any of the material.
Below are some thoughts to consider regarding your journalistic work product related to the events of that day. These considerations are not just relevant to those in D.C. but should be considered by all journalists, as many of you will find yourselves in these situations in the future.
1) Whether a staffer or freelancer, read about your rights and your company’s (or the company you freelance for) relevant policy in case you receive a request to provide images or other information to police. Have a plan of action in place so that you are not caught off guard. (See some relevant statutes below.)
2) Ensure that all of your computer and device files are backed up in a remote (not your home or office), secure location in case your devices are seized. Review your encryption level and password protection levels on your devices and accounts. Consider whether you should set your phone to wipe after a certain number of bad password attempts. Consider whether the best location for the files in question is in a location you can access in the cloud or limited to being with an editor or attorney. If you believe you have documented evidence of a crime, you should not destroy that evidence but, rather, ensure it is securely preserved.
3) Before you post photos on social media, review your metadata and be aware of how your metadata can create safety risks. Review guidelines about digital safety such as the Digital Safety Kit from the Committee to Protect Journalists and the Online Harassment Field Manual from PEN America. NPPA members can contact NPPA Safety and Security Chair Chris Post with security questions at [email protected].
4) If you work for a news organization, talk to your editors and the organization’s lawyers. Find out what the internal policies are and whom to contact in the event of an emergency. Put into your phone the contact information for the attorneys or editors you will call if you need to. Keep the same information easily accessible somewhere other than your phone and computer (such as written in indelible marker on your arm), in case those get seized.
5) Review the D.C. Free Flow of Information Act. D.C. Code §§ 16-4701 et seq. This governs D.C. police and prosecutors to the extent you documented an incident being investigated by them.
6) Review relevant federal rules and law. There is no federal shield law, but there are strict regulations, found at 28 C.F.R. § 50.10, that control when and how a federal agent can seek a warrant or subpoena for a journalist’s work product. Additionally, some — but not all — federal judges in D.C. courts have recognized a qualified First Amendment journalistic privilege in criminal cases. This protection has been held to not apply in some grand jury subpoenas. In all situations, it is essential to seek help from a qualified First Amendment attorney. You can review a great summary here.
7) If you are contacted by authorities and believe you might be charged with a crime because you were in a restricted area without permission during the crisis, you should consult with an attorney. Even if your news organization plans to defend you, make sure that any attorney working on your behalf is expressly representing you personally. NPPA members can contact us with any questions or for attorney referrals by emailing Mickey Osterreicher at [email protected] or Alicia Calzada at [email protected].
8) Contact Chris Post at [email protected] with any security or safety questions.
9) Register your work with the U.S. Copyright Office, copyright.gov. You will have a stronger ability to pursue those who misuse your images with a registration.
Also, for those covering events in Washington on Jan. 6 who were harassed, assaulted, injured or had their gear damaged, stolen or destroyed, please see this statement from the acting U.S. attorney for the District of Columbia “Condemning Violence against the Media and Inviting the Report of Such Violence.”
Even if you were not at the Capitol on that date, this is an opportunity for all journalists to consider these questions — if recent events have shown us anything, it is to expect the unexpected.
Now is also the time to remain vigilant. On Jan. 27, Homeland Security released the following statement:
“The Acting Secretary of Homeland Security has issued a National Terrorism Advisory System (NTAS) Bulletin after consultation with the intelligence community and law enforcement partners. There is currently a heightened threat environment across the United States that is likely to persist over the coming weeks. DHS does not have any information to indicate a specific, credible plot; however, violent riots have continued in recent days and we remain concerned that individuals frustrated with the exercise of governmental authority and the presidential transition, as well as other perceived grievances and ideological causes fueled by false narratives, could continue to mobilize a broad range of ideologically-motivated actors to incite or commit violence.”
Though the statement doesn’t mention any specific threats, it is good practice to review safety plans and security procedures for your organization. Newsroom leaders proactively should also consider getting hard-to-obtain safety supplies for their staff and reviewing physical security threats. Easily overlooked conditions that could increase vulnerability to a targeted attack at newsgathering organizations include intruder access to your news facility through unlocked or unguarded doors; directed violence at field crews who might be driving a marked vehicle with your publication or station’s name marked on it; and direct doxxing, electronic or physical harassment of journalists whose public information is easily found online.
Discuss with everyone in your organization the expectations of all staff, including freelancers, nonjournalists and support personnel, what exactly they are expected to do during an emergency or disaster condition. Having a clear understanding now of personal expectations and safety plans will allow all staff to prepare. ■
The NPPA’s Advocacy Committee is led by NPPA Advocacy Chair and Attorney Alicia Wagner Calzada and NPPA General Counsel Mickey H. Osterreicher.
The committee works to further the NPPA’s mission of advancing visual journalism by addressing local and federal policy issues that affect our members’ ability to provide the public with news images.
Osterreicher has been an NPPA member since 1973. Calzada has been an NPPA member since 2001.
Chris Post is the chair of NPPA’s Safety and Security Task Force. Post worked in EMT for 20 years before becoming a photojournalist for WFMZ in Allentown, Pennsylvania. He has been an NPPA member since 2010. He can be reached at [email protected] and on Twitter @ChrisMPost
Got a question or topic for a future column? If you are member, send your questions to Mickey [email protected] or Alicia at [email protected].