Photography is protected by the 1st Amendment of the U.S. Constitution. It also happens to be protected by the 16th Article of the Massachusetts Constitution. Nobody in their right mind would entertain the idea of applying for a permit to associate with their friends. Not in America. At least not yet.
For the same reason, I did not apply for an application to take photographs on the MBTA. It's a civil right. It's already mine.
After being stopped and interrogated by MBTA police for photography in the subway last month, after weeks of hounding the MBTA to actually disclose, in writing, what their policy IS on photography on the subway without a permit, after a dozen (or so) unanswered emails and about as many unreturned phone calls, this morning I spoke to Mary Logalbo, an MBTA lawyer. She specializes in Constitutional law.
Apparently Mrs. Logalbo obtained permission from the MBTA Deputy Police Chief Paul MacMillan to fax me a DRAFT COPY of their photography policy. It expressly allows amateur photography on the MBTA but requires that you provide ID upon request, photography of the subject cannot pose a security risk, the activity of shooting cannot disrupt MBTA operations and the pictures must be for strictly non-commercial use only.
No more background check.
No more one-month expiration.
John Reinstein and the ACLU deserve a lot of credit for forcing the MBTA to reconsider the policy and put it on legally defensible footing. Note the "original issue date" of 2006 -- this policy was likely written in response to Reinstein's letter to MBTA Police Chief Joseph Carter in June of that year. All my yapping did, I suspect, is get me a copy of the draft before anyone else.
You can find a copy of the draft policy here.
Tuesday, March 20, 2007
Friday, March 16, 2007
Desperately Seeking Clarification
On March 9th, I sent an email to the head of the customer support department and the legal counsel for the MBTA that specializes in Constitutional law.
No reply.
Wednesday, March 14th, I sent it again but this time adding MBTA press secretary.
This is the exchange that resulted.
Two of the twelve photos on my photography website are from the subway. Two is a lot? And what gives him the idea my focus is the "infrastructure?"
A strange reply to say the least.
It's also interesting to note that he didn't "reply to all." I included everyone in my reply.
Raise some eyebrows? ... Really??
A short quiz for Don Quixote...
If Joe thinks that my behavior looks anything like what suspicious behavior looks like, I'm grateful he's behind a desk.
But still, he is a senior spokesperson for the MBTA and that last line sure is interesting! It's going to baffle whoever stops me next.
In all my note-taking, I apparently confused Joe with William Mitchell. Mr. Mitchell is the head of the legal department. Mr. Pesaturo is the MBTA Press Secretary.
...and then the replies stopped. Huh.
So I sent a followup.
No reply.
Wednesday, March 14th, I sent it again but this time adding MBTA press secretary.
This is the exchange that resulted.
| sent: March 13, 2007 6:09PM from: Jason to: jpesaturo@mbta.com, kmckinney@mbta.com, mlogalbo@mbta.com, chowze@mbta.com subject: Photography Absent a Permit |
| Greetings, My name is Jason Desjardins, I'm a local photographer. Over the last several years, I've been told -- depending on which MBTA employee I talk to -- that photography on the subway is "illegal," "against MBTA rules," "criminal" and just two weeks ago, a "federal offense." One officer insisted the policy was clearly posted in various stations and broadcast over the intercom system, though I can honestly say I've never seen or heard it. On non-MBTA websites I've found information suggesting that a permit is required but I feel that being forced to re-request a new permit every month and the process of undergoing a (criminal?) background check is unnecessarily burdensome, and so I will not be seeking one. I've also checked the MBTA website by searching for "photography." Three links result; two for submitting and updating a company profile (presumably for advertising purposes) and one regarding commercial filming. This last link only references photography by saying it must not portray the MBTA in a negative light. In other words, it appears that the MBTA has no clear, written and publicly available policy on non-commercial, amateur photography. I am requesting an official communication from the MBTA on what, precisely, the MBTA policy is on photography without a permit. Sincerely, |
| sent: Mar 14, 2007 10:06 AM from: Joe Pesaturo <jpesaturo@mbta.com> to: Jason subject: Re: Photography Absent a Permit |
| It appears that you want to take a lot of pictures of the public transportation infrastructure in Greater Boston. May I ask why? |
Two of the twelve photos on my photography website are from the subway. Two is a lot? And what gives him the idea my focus is the "infrastructure?"
A strange reply to say the least.
It's also interesting to note that he didn't "reply to all." I included everyone in my reply.
| sent: Mar 14, 2007 10:41 AM from: Jason to: jpesaturo@mbta.com, kmckinney@mbta.com, mlogalbo@mbta.com, chowze@mbta.com subject: Photography Absent a Permit |
| Hi Joe, thanks for the reply. I don't understand the purpose of the query. Surely MBTA policy on photography is independent of the reasons I, personally, create my art. Please provide a copy of your policy regarding photography on the MBTA without a permit. Thanks, |
| sent: Mar 14, 2007 10:44 AM from: Joe Pesaturo <jpesaturo@mbta.com> to: Jason subject: Re: Photography Absent a Permit |
| Actually, the question is key to this matter. No one should be spending long periods of time photographing elements of the public transportation infrastrcutre. Of course, that's going to raise some eyebrows. MBTA personnel and police use their discretion in each instance. |
Raise some eyebrows? ... Really??
A short quiz for Don Quixote...
| Imagine you are an al Queda cell member casing the MBTA for good spots to plant explosives. Q. Your photograping technique should be: (a) Discretely photograph subway exits, entrances and support structures using a small, inexpensive 2 megapixel camera roughly half the volume of a deck of playing cards when few if any people are present or paying attention. (b) Openly photograph pretty much anything using a dSLR bigger than a large Dunkin Donuts iced coffee and a mechanical shutter audible for at least fifteen feet. Seek out clusters of people. Crowds are better. Q. Your "visibility" should be: (a) Blend in. Appear friendly but do not engage in unnecessary conversation. Do not draw attention to yourself. (b) Repeatedly call and email the MBTA legal department for information about their photography policy. Provide your real name. Q. If your photography is discovered and you are confronted: (a) Appear embarrassed, act like a tourist. Put the camera away and apologize. (b) Loudly proclaim your right, by law, to photograph in public areas. Attract as many cops as you can. |
If Joe thinks that my behavior looks anything like what suspicious behavior looks like, I'm grateful he's behind a desk.
But still, he is a senior spokesperson for the MBTA and that last line sure is interesting! It's going to baffle whoever stops me next.
| sent: Mar 14, 2007 12:02 PM from: Jason to: jpesaturo@mbta.com cc: kmckinney@mbta.com, mlogalbo@mbta.com, chowze@mbta.com subject: Photography Absent a Permit |
| "Actually, the question is key to this matter. No one should be spending long periods of time photographing elements of the public transportation infrastrcutre. Of course, that's going to raise some eyebrows. MBTA personnel and police use their discretion in each instance." If the official stance on photography is that each circumstance is discretionary, and to be evaluated by the individual employee, your staff and police seem to not be aware of it. On February 27th, I was stopped at the Harvard station and told that photography was "against MBTA rules" (CSA #5248 and Officer #545) and a "federal crime" (CSA #6995). In fact, I've been stopped many times while on the T and two things have been true for 100% of these encounters; first, the stated policy is "no photography, ever" and second, my motives have never been queried. Just this morning, one of my coworkers told me that last night, while exiting the Downtown Crossing train around 5:30PM, the intercom system broadcast, "Please passengers, be advised that the use of photo cameras are extremely prohibited in the MBTA facilities." So if I understand you properly, two things are true. • There is no written MBTA policy on amateur photography without a permit and; • Amateur photography is not banned outright. Each circumstance is discretionary. If both of these are correct, I'd appreciate a fax or letter on MBTA letterhead with this information to help avoid problems in the future. Joe, I appreciate your efforts as head of MBTA counsel to help clarify the policy. I would like to suggest that distributing this information to your employees might be prudent. Thanks, [fax # redacted] [home address redacted] |
In all my note-taking, I apparently confused Joe with William Mitchell. Mr. Mitchell is the head of the legal department. Mr. Pesaturo is the MBTA Press Secretary.
| sent: Mar 14, 2007 12:12 PM from: Joe Pesaturo <jpesaturo@mbta.com> to: Jason subject: Re: Photography Absent a Permit |
| Actually, I'm just the press secretary, not a lawyer. |
| sent: Mar 14, 2007 12:20 PM from: Jason to: jpesaturo@mbta.com cc: kmckinney@mbta.com, mlogalbo@mbta.com, chowze@mbta.com subject: Photography Absent a Permit |
| My apologies, I got you mixed up with William Mitchell. As press secretary, I imagine you're still authoritative on MBTA policy. Should I expect that communication by fax or by USPS mail? Thanks, |
...and then the replies stopped. Huh.
So I sent a followup.
| sent: Mar 14, 2007 12:20 PM from: Jason to: jpesaturo@mbta.com cc: kmckinney@mbta.com, mlogalbo@mbta.com, chowze@mbta.com, ctimberlake@mbta.com, wmitchell@mbta.com subject: Photography Absent a Permit |
| Hi Joe, Yesterday, in our email exchange (Mar 14, 2007 10:44 AM), you indicated that photography without a permit is not forbidden on the subway system but instead a matter of individual MBTA personnel discretion. As I mentioned, in every encounter I've had with MBTA staff, photography has been strictly forbidden. This is why I requested a copy of your policy on MBTA letterhead. I haven't heard anything back from you on this request. As I'm sure you can imagine, I'm anxious to avoid the same problem I encountered on Feb. 27th. I was stopped, detained for roughly 30-40 minutes, and told in no uncertain terms that photography was strictly verboten. One CSA insisted photography on the subway was a "federal crime." Both MBTA officers were adamant that photography was never allowed without a permit, this policy appeared on signage and was also broadcast through the subway system intercom. In any case, "why" or "what" I was photographing never came up. Obviously a copy of your policy would have been very useful. Again, a copy of your policy regarding photography without a permit on MBTA letterhead, by fax (617-868-1120) or by USPS mail (see address below), would be very much appreciated. Please reply to this email to let me know the status of this request. Sincerely, [address redacted] |
Saturday, March 3, 2007
Another Run-In
Had another legally dubious encounter with the MBTA. This time with a few police officers.
After exiting the Red Line car at Harvard station I was stopped by an MBTA employee with a walkie-talkie and told to stop taking pictures. My ID was requested. I refused the request and asked if I was being detained. He said detaining me was not within his power so I left the station and headed to work. After dropping off my laptop and bag, and explaining what happened, I returned to Harvard station to obtain the ID# of the employee who stopped me.
The employees provided their ID info but they also called the cops. I was told, in front of perhaps a half-dozen witnesses that shooting was illegal and, in fact, a "federal crime." I was informed I would not be allowed to take photographs and would be asked to leave if I did.
I was told by an MBTA police officer that the MBTA was "pseudo-public" property (it isn't, the MBTA is a public corporation), that the MBTA was an "authority" in the context of having rights that supersede my 1st Amendment and 16th Article right to freedom of expression (they don't), that the MBTA is not public property since it "does not receive all of its funding from taxes" but the same argument could be made for the government itself (they also receive income from fines and permits, for example).
Finally, he insisted the MBTA policy against photography was a written one. It isn't and it's a simple matter to verify for yourself.
My property was seized while I was not under arrest. This is both illegal and pretty stupid because if I were a terrorist -- and that notebook contained, say, my bomb-planting spots -- it would now be inadmissible.
I was told that the action of taking pictures, asking for employee ID numbers of the staff I interacted with and being on private property were all "reasonable suspicion" to compel production of an ID upon demand.
On advice from counsel, I will not relate the exact, gory details of the full event. The particulars were immediately recorded and the transcript was sent to the ACLU. And this all took place smack-dab in the middle of the Harvard subway station atrium which is downright spilling over with cameras, I'm sure, so I don't expect there will be much argument over the facts.
More later.
After exiting the Red Line car at Harvard station I was stopped by an MBTA employee with a walkie-talkie and told to stop taking pictures. My ID was requested. I refused the request and asked if I was being detained. He said detaining me was not within his power so I left the station and headed to work. After dropping off my laptop and bag, and explaining what happened, I returned to Harvard station to obtain the ID# of the employee who stopped me.
The employees provided their ID info but they also called the cops. I was told, in front of perhaps a half-dozen witnesses that shooting was illegal and, in fact, a "federal crime." I was informed I would not be allowed to take photographs and would be asked to leave if I did.
I was told by an MBTA police officer that the MBTA was "pseudo-public" property (it isn't, the MBTA is a public corporation), that the MBTA was an "authority" in the context of having rights that supersede my 1st Amendment and 16th Article right to freedom of expression (they don't), that the MBTA is not public property since it "does not receive all of its funding from taxes" but the same argument could be made for the government itself (they also receive income from fines and permits, for example).
Finally, he insisted the MBTA policy against photography was a written one. It isn't and it's a simple matter to verify for yourself.
My property was seized while I was not under arrest. This is both illegal and pretty stupid because if I were a terrorist -- and that notebook contained, say, my bomb-planting spots -- it would now be inadmissible.
I was told that the action of taking pictures, asking for employee ID numbers of the staff I interacted with and being on private property were all "reasonable suspicion" to compel production of an ID upon demand.
On advice from counsel, I will not relate the exact, gory details of the full event. The particulars were immediately recorded and the transcript was sent to the ACLU. And this all took place smack-dab in the middle of the Harvard subway station atrium which is downright spilling over with cameras, I'm sure, so I don't expect there will be much argument over the facts.
More later.
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