Date: Tue, 6 Jul 2010 07:03:59 -0700
From: Phil Mocek
To: Paul Steiger - ProPublica Editor-in-Chief
Cc: Stephen Engelberg - ProPublica Managing Editor, Charles Ledford,
    Carlos Miller, Lance Rosenfield
Subject: Re: Texas City police detain and search photographer, and you
         complain only of BP staff's behavior?

[added photographers Lance Rosenfield and Charles Ledford to recipient list;
following is the third message in a discussion between ProPublica staff and me
regarding a recently-reported incident of police harassment of a photographer
who photographed an oil refinery from a public street]

On Tue, Jul 06, 2010 at 02:10:27AM -0400, ProPublica Editor-in-Chief
Paul Steiger wrote:
> Thanks for your note of July 5.

You're welcome.  Thank you for your reply.

> First, I want to note that it was our story that brought all of these facts
> to your attention, so I don't think we're letting anything "slide" or not
> bringing attention to it.

It was [discussion of the incident on FlyerTalk forums][1], not [your
story][2], that brought this to my attention.  However, that discussion seems
to have been spurred by one participant in the discussion reading your story,
so I suppose that indirectly, your story did bring some facts to my attention.
I thank you for that.

 [1]: <http://www.flyertalk.com/forum/travel-safety-security/1102009-photographer-detained-texas-city.html>
 [2]: <http://www.propublica.org/article/photographer-detained-briefly-by-bp-and-local-police>

> Second, we aren't necessarily finished with this subject. You might want to
> watch our site the next few days.

Thanks for the tip.  I'll do so.

> However, I must disagree that Homeland Security has no right under any
> circumstances to be concerned about film taken of sensitive facilities from
> public property.

First, Homeland Security doesn't have rights.  I do, you do, and Lance
Rosenfield does, but a governmental department does not.  It has some powers
granted by the people and some restrictions on how those powers can be used.

Second, that's a straw man.  I did not mention Homeland Security in my message to you, and I did not mention anything about anyone's concern about film being taken anywhere.  I wrote that police officers "should not be detaining anyone for photographing anything that is visible to the public, and they should notuse threats of arrest to coerce reporters into handing over their belongings."
Do you disagree with that statement?

If it is so dangerous for the public to examine something that we must prevent
them from photographing it, then we should also prevent them from looking at
it.  When something is situated outside in plain view of anyone who passes it
on public property, it is utterly ridiculous to prohibit those people who see
that thing from remembering it, taking notes about it, describing it to other
people, or photographing it.

> Refineries are an obvious potential target for terrorists.

I don't find that to be obvious, but assuming for the sake of discussion that
oil refineries are such targets, how is that relevant here?  Photography is
not an act of terrorism.

Instead of calling out BP's, Texas City Police's, and U.S. Dept.  of Homeland
Security's fear mongering -- including the ridiculous notice that Mr.
Rosenfield's photos were cleared by the Joint Terrorism Task Force before he
was released -- ProPublica featured a quote from its editor-in-chief saying,
"We certainly appreciate the need to secure the nation's refineries."

> Where we agree completely is that, IN THESE CIRCUMSTANCES, there was no
> reason for the police to threaten arrest, or to look at our photographer's
> images.

I'm glad we agree on that point.  I wish Stephen Engelberg had taken the
opportunity to make that point in his article.  I'm concerned that you may
have many readers who think there are some circumstances in which a private
company can phone the police and have someone detained and investigated for
terrorist activity simply because he was on a public road taking pictures of
something that is plainly visible to the public.

In fact, I'm rather concerned that someone in your position of influence seems
to think so.  Could you please provide an example of some OTHER CIRCUMSTANCE in which 1) someone photographed from a public place something that is in constant view of the public and 2) there would be reason for police to use threats of arrest to coerce that photographer into consenting to a search the content of his camera?

> Here's where our work with BP comes into play: Because the company knew we
> were on deadline on a story about Texas City, and because the company and
> the police were closely coordinating, a photographer declaring he was
> working with us on such a story should have been believed, or, at the very
> least, his account could have been checked with our newsroom.

I am dumbfounded by the fact that in light of police interference with your
photographer's First-Amendment-protected activity, you are focused on the idea
that the police should have believed the man when he said he was working on a
story.  It shouldn't have mattered what he was working on, or if he was
working on anything.  If they had thrown him in jail for the night, would you
still complain that *because BP knew you wanted to publish your story soon and
because the police were working closely with BP,* they should have believed
him or called your newsroom before locking him up?  They shouldn't have
detained him in the first place.

I've yet to see any reporting of the idea that the police had any reason to
suspect wrongdoing.  Do you think that they did?

I wonder if ProPublica would have found this story newsworthy if instead of a
freelance photographer working for your organization, the photographer had
been [Carlos Miller][3], [Charles Ledford][4], or [me][5].  I would not have
consented to that search.  Do you suppose I would have been treated
differently by Texas City Police for maintaining my protection from
unreasonable search in addition to my freedom of expression?  Would it have
been acceptable for police to detain me even longer, since they would have no
newsroom to contact for assurance that my photography was not cause for
concern?

 [3]: <http://carlosmiller.com/about/>
 [4]: <http://stretchphotography.com/blog/2010.07.01/banned-from-metro/>
 [5]: <http://www.papersplease.org/wp/mocek/>

> In any event, none of this justifies BP personnel's having been shown the
> photographs-- an action by the police that is obviously subject to abuse.

Am I to understand that you feel police disclosure of the result of a consent
search of a photographer's camera to a private party is clearly cause for
concern, but that the duress which led to consent to the search is less
clearly so?  ProPublica's reporting of the incident along with your statements
to me lead me to believe that such is the case.

> Beyond this, and contrary to your statement, it's not at all clear to our
> counsel, on the facts we described, that BP did not violate the law.

That is not contrary to any statement I made to you.  I suspect the statements
to which you meant to respond were, "BP staff may have acted inappropriately,
but they have the right to do so.  Mr.  Engelberg did not describe any
unlawful behavior on the part of BP staff."  I stand by those statements.  BP
staff can make all the requests they want, follow reporters down the street,
and call the police, and unless a judge has ordered them to refrain from doing
so, it's perfectly legal for them to do so.  Mr. Engelberg reported exactly
three actions on the part of BP staff: confronting Mr. Rosenfield, following
him down the street, and receiving information provided to them by the police.
I don't believe that any of those actions is unlawful.

What law do your counsel believe, on the facts you described, that the BP
staff may have violated in this incident?

> If the detention was undertaken at BP's behest, then this may have been a
> denial of the photographer's civil rights under color of law by BP.

Please describe more clearly the puppetry you implied.  Are you suggesting
that BP staff lied to police in order to convince those police to detain Mr.
Rosenfield?  Do you suspect that the police took direction from BP staff and
that it was unlawful for BP staff to issue such direction?

If Mr. Rosenfield's rights were infringed upon, it seems from Mr.  Engelberg's
reporting that Texas City Police (and possibly the U.S. Dept. of Homeland
Security) were the perpetrators of that injustice, and that ProPublica have
glossed over this fact, aiming for the easier target.  Please, go ahead and
kick BP while they're down -- it's probably the least of what they deserve --
but don't play along with our federal government's attempts to terrorize us
with threats of bogeymen lurking around every corner.

--
Phil Mocek