We have heard from many of our members with concerns about their rights as police and federal agents seek evidence of the seditious attack on the U.S. Capitol building on January 6, 2021, in Washington, D.C. While we are not aware of any attempts to request or subpoena evidence from journalists, below is some advice in the event you are asked for footage, outtakes or other journalistic work product related to the events of that day.
1) Whether a staffer or freelancer, read about your rights, and your company’s (or the company you freelance for) relevant policy in such situations and have a plan of action in place so that you are not caught off-guard. (Note 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 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 his email: [email protected] or Twitter direct message @ChrisMPost.
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 that 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]. Their Twitter contacts are @nppalawyer and @aliciaphoto.
8) 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.
Even if you were not at the Capitol on Wednesday, this moment is an opportunity for all journalists to consider these questions. If recent events have shown us anything, it is to continue to expect the unexpected.
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About NPPA: Since its founding in 1946, the National Press Photographers Association (NPPA) has been the Voice of Visual Journalists. NPPA is a 501(c)(6) non-profit professional organization dedicated to the advancement of visual journalism, its creation, editing and distribution in all news media. NPPA encourages visual journalists to reflect the highest standards of quality and ethics in their professional performance, in their business practices and in their comportment. NPPA vigorously advocates for and protects the Constitutional rights of journalists as well as freedom of the press and speech in all its forms, especially as it relates to visual journalism. Its members include still and television photographers, editors, students, and representatives of businesses serving the visual journalism community.