(Don’t) Say Cheese: Why is the NYPD Photographing Protestors?

As people march this weekend to commemorate the legacy of Dr. Martin Luther King, Jr., they should be wary of being illegally monitored by the police.

January 17, 2015

Protestors who marched through New York City last month to draw attention to racial biases in our criminal justice system will again take to the streets this weekend to celebrate the legacy of Dr. Martin Luther King, Jr. But if this weekend’s marches are anything like last month’s — people should be wary of being illegally monitored.

Last month, as part of a crowd marching towards the West Side Highway, I watched NYPD officers use their iPhones to snap pictures of individual protesters, often zooming directly onto people’s faces. When I asked one man in a blue NYPD Community Affairs jacket why he was taking pictures, he snapped, “To put on Facebook.” Others were less forthcoming. One officer tucked her phone away and glared at me; while another incorrectly informed me I was the one breaking the law by photographing him.

In reality, the rules are significantly different for police and protesters. People have a constitutional right to record police. But police officers operate within a system which places limits on what they can legally document, particularly when it concerns First Amendment-protected political activities.

In New York, the NYPD must follow court-mandated rules that restrict the monitoring of protest groups. The NYPD’s current policy prohibits photography and video by on-duty officers unless there is “reasonable belief” that unlawful conduct is occurring or imminent. When recordings are for recognized purposes, such as to create “training materials on crowd control” images should “generally not contain close-ups of participants in the demonstrations,” focusing instead on “crowd size and police behavior.” 

However, the officers I saw last month were documenting people engaging in peaceful, constitutionally-protected activities, where no illicit behavior was evident or imminent.

This isn’t new. A 2012 report by the Protest and Assembly Rights Project details similar behavior during Occupy Wall Street protests, with police “clearly zooming their video cameras on individual faces” and “recording activity at all times” through cameras mounted in Zuccotti Park.  

Any photographs taken by on-duty cops are automatically treated as legal records. Accordingly, this sort of information-gathering on civilians could have significant ramifications for protestors’ civil liberties. People should feel comfortable expressing their views at a protest — a difficult task when there’s a police camera in your face. Then there are questions of individual privacy. Are these pictures being stored? Will they wind up in a police database? Are there guidelines or limitations as to how these photographs will be shared? There are still many unanswered questions.

Other cities have faced similar issues. In Seattle, after allegations of unauthorized police surveillance during recent protests surfaced, Seattle Police Chief Kathleen O’Toole asked the city’s intelligence auditor to conduct a review of the police department’s compliance with photography guidelines. New York would do well to follow Seattle’s lead and commission an investigation by the new NYPD Inspector General. 

Commissioner Bratton has gotten a lot of credit for handling the Garner protests with greater restraint than his predecessor showed during Occupy. But photographing protestors who’ve done nothing wrong violates the NYPD’s own internal guidelines.

As city officials consider the reforms being demanded by protestors, police leadership needs to ensure officers are sticking to the rules they’ve already got in place. If this surveillance was authorized, then the NYPD needs to justify its connection to criminal activity. If it wasn’t, the department needs to investigate why their officers are ignoring internal guidelines.

In continuing the conversation and moving forward, the NYPD can help considerably by ensuring their policing tactics during the upcoming protests are respecting the rights of the communities they serve.