Pondering Minstrel

Friday, July 29, 2005

RIGHT TO PHOTOGRAPH?

As part of a publishing proposal that I'm working on, I wanted to get photographs of Jack London Square, which is owned and operated by the Port of Oakland. This is a tourist spot with a ferry stop, port cranes for commercial shipping traffic in addition to restaurants, floating museums and other retail outlets.

While I was taking pictures of the ferry dropoff, I made eye contact with a security guard that smiled as he walked by, but a short time later, I was stopped by another security guard that asked me what I was doing. I told him I was taking a picture of the "Ferry" sign, which was glowing in the sunset. He then said that he was going to have to ask me to stop. I asked him why I had to stop because I was on public property. He told me that I was on private property because the property is owned by the Port. Which evokes some questions.

Before I go on, I should tell you that I spoke with someone at the port and received confirmation that I did not need a permit and that it was perfectly legal for me to take pictures in the public access area.

So here is where the issue lies. At the time I was stopped, I was perplexed because I thought the Port was a division of the city. I have now come to find out that it is not a division of the city, but it is still a quasi-governmental entity, though I still have some phone calls out on that one. Now, in talking very, very briefly with someone at the port, some areas out in public space, specifically in Jack London Square, are managed by private companies. However, other areas of the square are considered common public areas that are managed by the Port, such as the common walkways, which is where I was standing.

The people I spoke to at the Port, so far, have been surprised that I was stopped from taking pictures and were unaware of any restrictions to photographing in the area. However, they left a message for the real estate security liason to find out if there are any restrictions that I need to know about. This time, I'm getting everything in writing on letterhead.

But I think you can start to see my confusion. When I'm in a strip mall, I know I'm on private property because the landlord is a private entity. However, at the time, I believed the port to be a division of the city government, or at least some form of government entity, that "owns" many miles of property. They still may be a government entity, but I don't know their status at the time of this writing.

I was reasoning that the mere fact that they are a division of the city government makes all their property that is in open space public, like the sidewalks, and only buildings that are being leased by private entities are still private. However, upon thinking about that some more, I'm not so sure that's correct.

The city and city divisions have the ability to set rules and restrict access to certain areas as they see fit. Parks have hours of operation and not all city buildings are open to the public. So how do we actually know when and where we're permitted to take photographs? If the city can stop you from accessing a park at night, can they stop you from taking pictures in another of their open space properties if they so desire? What is the procedure for restricting use, activities and access of government owned/managed properties? Can they arbitrarily decide that they are not going to permit xyz today and then permit it the next day? Is there a process or do they have to legislate these kind of changes? Where does city property end and public property begin? Is there a difference? Isn't the sidewalk technically "owned" by the city, too?

In order to find out more, I phoned the city attorney's office. I spoke with Michelle Abney. She is an extremely nice woman. I asked her these same questions. She was the one that informed me that the Port is not part of the city. They have their own board of directors, funds etc. Which led me to ask if they are a government entity or if they are then a private company/developer like Coldwell Banker. She said that she thinks of them as a quasi-government entity, but stated that I would have to talk to the Port to get a real determination of their status.

I then posed the question about restrictions on activities, like photography, since the city can restrict access to certain city properties, etc. She listed off some of the restrictions the city has with parks and buildings, such as vagrancy, alcohol consumption and posession in the parks, etc.

I then asked, "But aren't those city laws?"

She said that there were municipal codes in place for those things, so she speculated that maybe the photography was Patriot Act related because she's seen people that take photographs of the Federal Buildings being asked to stop by guards but she didn't know for certain. I told her that there wasn't a provision in the Patriot Act to prevent someone from taking photographs from public property of buildings, etc. that can be plainly seen from a public access space. I continued on that I was actually more curious about the restrictions the city can place on public properties and the process, if any, required to restrict access and use. Is the city within their legal rights to arbitrarily restrict activities on any city property? (I'm guessing the answer to that is yes, but it seems strange since governments are supposed to be held accountable and have procedures in place for that reason.)

I'm abbreviating our conversation, obviously. She really did try to help me as much as possible. In the end, she thought these were questions I should ask the Chief City Attorney, Barbara Parker. I left Ms. Parker a message, and I left a message for the ACLU to get their perspective on this issue as well. I'll keep you posted.

7/29/05 6PM UPDATE: I received a call back from the Port of Oakland. My contact said that she had spoken with the Real Estate Office's liason with security and confirmed that there is no reason I cannot lawfully take photographs in public spaces where anyone can visit. The only places where security may be of concern are the areas that are considered sensitive, such as the ferry ramp behind the gate when there is no ferry there or expected. I told her that I was actually photographing the pathway leading up to the Ferry dock and standing near the USS Potomac entrance. She said that she cannot understand why they would have stopped me from photographing. She also said to simply tell them that the Communications department of the Port has given me the okay. I requested something in writing, to which she said that the real estate office was very reluctant to do anything like that, and besides, it would have to go through legal, which would take forever. I asked for a permit, and she said that she would have the liason contact me directly.

I have been very grateful that the Port has been so willing to work with me on this, and I'm also relieved that they are likewise shocked that I would have been prevented from taking pictures in a public place, but it's clear that the process is broken and there needs to be a better understanding of the law for these minimum wage security guards that are given more and more authority because of heightened terror alerts.

I'm still waiting to hear from the City Attorney and the ACLU, but I have been told unofficially from an attorney that local municipalities cannot arbitrarily restrict access and activities.