Drones, Privacy and the Future of Photojournalism: An Interview with Photojournalist and National Press Photographers Association General Counsel Mickey Osterreicher by New York Times First Amendment Fellow Nabiha Syed

By HLPR blog editorial staff

Mickey Osterreicher is a veteran photojournalist and serves as General Counsel for the National Press Photographers Association (NPPA).  His work has appeared in such publications as the New York Times, Time, Newsweek and USA Today as well as on ABC World News Tonight, Nightline, Good Morning America, NBC Nightly News and ESPN.

As a lawyer, Mr. Osterreicher has been actively involved in such issues as: cameras in the courtroom, the federal shield law, media access, public photography and copyright infringement. He helped to draft the revised photography guidelines for Amtrak and police-press guidelines for the Toledo, OH; Miami Beach, FL; Suffolk County, NY; and Rochester, NY Police Departments. Mr. Osterreicher has also provided constitutional law training to the D.C. Metropolitan Police Department. Given his expertise with law enforcement, privacy, and photography, we are pleased to have Mr. Osterreicher weigh in on the future of drone journalism.

Nabiha Syed is the First Amendment Fellow at The New York Times.

Ms. Syed:   You’ve argued that there is a “War on Photography” going on. What’s happening?

Mr. Osterreicher: There has always been tension between the police and the press — on the street, that apprehension is most evident when visual journalists use cameras to record police activity. Since 911, there has been heightened concern over the use of photographs by terrorists as part of potential target identification. In a misguided attempt to deter these activities, police and security guards have informed both journalists and citizens that photography and videotaping of such things as buildings, bridges and transit systems – even though they are in public view and being photographed or recorded from public property – is prohibited. Unfortunately, there are countless – and increasing – examples of this type of police-press confrontation. (The Atlantic WireMSNBC, and the Columbia Journalism Review have coverage.)

Adding to this perfect storm of confrontations is the worldwide proliferation of cell phone cameras capable of taking high quality photographs and audio-visual recordings.  These photographs and recordings can easily be wirelessly uploaded to the Internet. This has led to an exponential increase in citizen journalism. But as freelancers or bloggers, they may lack the legal support to defend themselves against police intimidation or even litigation aimed at preventing this type of newsgathering.

In a time of technology and terrorism, citizens and photojournalists throughout the world have risked — and in some cases given — their lives to document governmental activities. Sadly, what is viewed as heroic abroad is often considered as suspect at home.

Ms. Syed:  Drones are touted as one method of circumventing restrictions on access, whether those restrictions are because of law enforcement or logistics. (For example, as News Corp has done with storm coverage in Alabama.) What do you think of this option?

Mr. Osterreicher: Technological advancements –from the printing press to radio to videotape to livestreams and tweets -have always been used to make images and information more widely available and instantly accessible. I firmly believe that as unmanned drones become more prevalent, reliable, and affordable, and as high definition cameras become smaller, the demand for drone use will quickly grow and eventually surpass more traditional forms of aerial news coverage.

The impetus here is both technological and economical. Reports of drone use by news organizationsGooglesports teams and scientists are on the rise – the technological capabilities are clearly here, and will only become more accessible over time. There are also economical considerations, here: Skyrocketing fuel costs along with increased insurance rates make flying a helicopter or blimp unfeasible. When news organizations are laying off staff having a pilot or pilots on the payroll is now an unaffordable luxury, especially when compared to the cost effectiveness of a drone.

That isn’t to say that there won’t be pushback. For example, the many ag-gag bills enacted around the country are designed to keep prying cameras away, and they do so through the application of heightened trespass laws. In light of that, it’s interesting to think how drone overflights will be viewed by courts.

That said, I can’t imagine that it will be long before state and federal legislation is proposed and enacted to limit drones used for newsgathering. As it stands now, the FAA is able to issue a Temporary Flight Restriction (TRF) closing off certain airspace to news aircraft. These restrictions are sometimes requested by a law enforcement agency. That kind of restriction could easily apply to newsgathering drones.

Ms. Syed:  And what might be some of the legal scuffles resulting from the regulation of newsgathering drones?

Mr. Osterreicher: It will be interesting to see what type of case gets to the courts first – one where the government is involved or one in which a citizen or corporation is bringing a claim against a media organization.

We will likely have new cases involving civil lawsuits by those who assert that the media has unlawfully intruded upon their privacy rights by recording, publishing or broadcasting images captured by drones. This will also have the usual “right to be left alone” causes of action with the concomitant false light and public figure implications, as well as intrusion of solitude or public disclosure of private facts and appropriation.

Ms. Syed:   How do you think media entities will respond?

Mr. Osterreicher: Of course, the media will assert the affirmative defenses such as that these are matters of public concern and/or newsworthy events. That’s what makes case law. I would recommend keeping the images from drones rather wide and using the technology to illustrate overall shots, instead of zooming in on faces and people in intimate settings. News organizations should start cautiously and err on the side of being conservative in their initial use of drones in order to prevent an early and over-reactive backlash to this new technology.

Generally, I think that the issue always comes down to whether or not the limitation on a First Amendment activity is content neutral, narrowly tailored, serves a legitimate governmental purpose and restricts no more free speech than is necessary to accomplish that goal. I believe that the media will challenge any law, should the government restrict or regulate the use of drones for newsgathering without meeting those prongs.

It is also important to distinguish between government imposed restrictions on First Amendment activities and a possible invasion of privacy tort claim brought against a news organization by a private citizen. The latter would most probably be adjudicated along the same lines as those in which a photographer used a long telephoto lens to takes pictures or record video of something or someone that could not otherwise be readily seen and where that person believed he or she had a reasonable expectation of privacy.

Mr. Syed:    Do you think existing legal and ethical frameworks will translate easily to “drone journalism,” or will we need something new?

Mr. Osterreicher: There has certainly been much jurisprudence in the area of aerial surveillance by the government since California v. Ciraolo, 476 US 207 (1986) (holding that the Fourth Amendment was not violated by naked-eye aerial observation of respondent’s backyard).

The FAA also already offers guidelines that may translate to the drone-journalism framework.  The FAA issues TFR’s, which can restrict flights depending on specific hazards or conditions. But recent reportssuggest that local law enforcement agencies can obtain TFRs upon request, without the FAA specifying “the hazard or condition that requires the imposition of” the restriction. TFRs could be used to unduly restrict drone newsgathering, possibly premised on little more than the whims of law enforcement.

Lawsuits and public apprehension over new technology is nothing new. The drone might well be considered a new version of the Kodak Brownie, which in 1884 caused no end of concern when it allowed anyone to take photographs in public places rather than in the seclusion of the studio. That concern caught the attention of a young Louis D. Brandeis and Samuel D. Warren, who expressed the fear that the “sensationalistic press” would use this new-fangled device to wreak havoc on the right to privacy.

They posed a similar question “whether the existing law affords a principle which can properly be invoked to protect the privacy of the individual; and, if it does, what the nature and extent of such protection is[?]” But the truth is that the legal question concerning citizens’ privacy rights has always been a problem for newsgathering organizations.  The potential litigation from the use of drone-captured images will be no different.

Ms. Syed:   And finally: Ryan Calo argues that drones may, in fact, lead to a heightened or renewed concern with privacy. What do you think? And if that comes true, do you think that could ultimately precipitate a backlash for photographers in general?

Mr. Osterriecher: I do not see drones creating a backlash against photographers as much as against news organizations — unless paparazzi-style photographers employ small consumer-type drones to invade the privacy of high-profile individuals in a continuing course of conduct. And that kind of use may be inevitable, as competition increases for celebrity or other high-interest photos. This is especially plausible as drones become more affordable and the images they produce become of higher quality.

Developments in privacy law will take into account a number of competing tensions: between the government and the press; privacy rights and public disclosure; as well as advancing technology and evolving societal standards versus emerging case law. Add to the mix the traditionally fierce competition in the news industry, now exponentially compounded by the instantly accessible information via the absolute and world-wide proliferation of mobile devices.

As I said earlier, developing technology always disrupts the law. Last century, society was faced with what seemed to be an unbelievable invasion of privacy brought about by instantaneous photographs and newspaper enterprise. After much hand-wringing over such new devices, legal remedies were developed to protect the right to be left alone. In that way, the supply and demand that drives newsgathering is almost coextensive with evolving technology and legal precedents.

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