In 2004, photographer James Prigoff parked his rental car outside the fence surrounding a privately owned industrial site in Dorchester, Massachusetts. The object of his interest was a natural gas storage tank decorated with a mural by nun and pop artist
. Private security guards asked him to relocate twice, so in the end he didn’t get the best angle of Corita Kent’s colorful Rainbow Swash
(1971). Instead, he got something he hadn’t bargained for—a visit from the government’s Joint Terrorism Task Force and his name on a Suspicious Activity Report (SAR).
Prigoff became a plaintiff in Gill v. DOJ, a case the ACLU initiated in 2014 to challenge the legal standards of suspicious behavior. “Even when the Federal Bureau of Investigation concludes that the person did not have any nexus to terrorism, a SAR can haunt that individual for decades, as SARs remain in federal databases for up to 30 years,” alleges the ACLU’s complaint. Among the five plaintiffs was another photographer, Aaron Conklin, a graphic design student questioned after photographing a Shell refinery in Martinez, California. The other three plaintiffs were profiled not for taking photographs, but for their ethnicity or religion.
The complaint lists other reasons why people have landed on a SAR: “female subject taking photos of Folsom Post Office,” “male nonchalantly taking numerous pictures inside a purple line train,” and “suspicious photography of the Federal Courthouse in Sacramento.” At the center of this case was the distinction between “reasonable suspicion”—the country’s regular standard for criminal questioning—and a lower, broader standard that behavior “may be indicative” of criminal activity, which the ACLU argued the DOJ adopted without informing or educating the public.
“If the federal government wants to amass huge volumes of data about innocent Americans, at the very least it must give a reasoned basis for doing so and provide the public with an opportunity to comment on the proposal,” says Linda Lye, senior staff attorney with the ACLU of Northern California. But a judge ruled in favor of the DOJ in March 2017, noting the broader standard was internal policy, not legislation, and that the public was helped by a uniform rule.
Jonathan A. Loeb, a partner at Blank Rome, worked on behalf of the plaintiffs while at Bingham McCutchen (current Blank Rome of counsel Jeffrey Rosenfeld also worked on the case). “The issue here really does come down to security,” Loeb explains. “Anybody who is legitimately taking photos could assert their rights under the First Amendment, as long as it’s not a protected area.” He gives the example of airport security as a protected area. “You can take the photo, but law enforcement can inquire as to why.” Even if that conversation goes well, though, there might be repercussions—such as landing on a SAR.
So what did the government think Prigoff was doing? “Corporate espionage and trade secret theft is rampant,” explains Loeb, and it’s a national security concern. Working in Los Angeles, Loeb has seen plenty of cases of harassing and stalking enabled by telephoto lenses (hello, paparazzi), so he’s clear about the ways in which privacy concerns curtails First Amendment rights to photography.
And yet, it’s troubling that private corporations, like Shell, can use the government to control people on public land surrounding their equipment—especially when public art is involved. For those of us who have captured the Brooklyn Bridge with abandon, it’s hard to imagine a world where private security might come to crash our Instagrams.