A traveler was recently prevented from taking photos of an airplane at an airport and was seen deleting the photos. But is it legal to photograph airplanes? Yes absolutely.
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JFK’s Terminal 4 is the only private terminal in the US, see note at the end of this post.
El Al: No photos
A travel writer, Chris Carley, arrived at a crowded Delta gate at New York’s John F. Kennedy Airport (JFK) during a flight delay. He decided to do planespotting and began photographing a nearby gate for El Al, the flag bearer of Israel. An airline representative approached Mr. Carley as he collected footage of the airline’s 787-900 parked at the gate. Here is his narration as it appeared on his blog in this week.
“Sorry,” said an EL AL employee after appearing out of nowhere. (I know The security of the Israeli airline is legendary but damn, that lady was stealthy.)
she was Not happy with me
“Would you please not photograph the EL AL flight?” she said. The young lady was a good foot shorter than me – but her tone and look were intimidating.
I really wanted to say (with a wink), “Oh, it’s okay. I’m a travel blogger who also writes about credit cards and loyalty points.” Something told me her sense of humor wasn’t showing up at work that afternoon.
“Sure,” I said instead. Several people in the goal area now observed the developing situation. (I’m shocked no one pulled out their phone to record it.)
I already knew where this was going. I showed her my iPhone as if to say: No problem, ma’am.
“And would you please delete the pictures you’ve already taken,” she said. I intentionally left out a question mark at the end of this sentence. She didn’t ask me to delete them – she told me to.
“No problem,” I said. Then she watched me delete each picture one by one.
She gave me a quick “thank you” and headed back to wherever (the EL AL Ninja team clubhouse?).” — Chris Carley, Eye of the Flyer
Implicit Security Issues
As Mr. Carley implied, and as El Al would no doubt have confirmed, El Al’s representatives were probably not concerned about the unlicensed use of their aircraft livery. Israel has faced a series of security issues targeting the country, its assets and others specifically the airline. Using photo or video recordings to document procedures and movements of flight attendants, baggage handlers or other crew members could be used for nefarious purposes. The same could be true for aspects of their equipment.
Can you take pictures of airplanes?
The Supreme Court has clarified that anyone in the United States can take photographs in public spaces, including for commercial purposes. Here are some aspects of the Supreme Court’s opinion:
- They cannot cross the eyes (therefore it can be recorded if it can be seen from accessible public property like a state airport)
- The First Amendment to the United States Constitution protects freedom of speech, but also freedom of the press, which applies to anyone who intends to publish anywhere (including on social media). This does not mean that the publication of so many stories must never be picked up by the media.
- Law enforcement cannot make a protected activity a crime.
“If you are lawful in public spaces, you have the right to photograph anything that is visible to the public. This includes images of federal buildings, transportation facilities, and the police force. Such photography is a form of publicity oversight of the government and is important in a free society.” – ACLU
Are there legal consequences?
If Mr. Carley had denied the representative’s request — and that was all — she may have called law enforcement to determine if he posed a threat. While police officers should respond to the call and have a casual encounter that will remain voluntary as long as he is comfortable, the only law the police officers can enforce is actually Mr Carley’s as he has the right to be there, and exercising his right first amendment right.
Regarding federal facilities like airports (including the TSA), the Department of Homeland Security clarified in a 2010 memo that not only is photography permitted inside their facilities, but that law enforcement agencies are instructed not to obstruct them. This was reiterated in a 2018 memo:
“…this Operational Readiness Order reiterates the 2010 guidance; Clarifies the right of the public to photograph public entrances, lobbies, foyers, corridors and auditoriums of federal facilities; and directs FPS law enforcement personnel and PSOs to maintain security without infringing on the public’s rights with respect to photography and videotaping.” DHS
private property
Many people confuse their privacy rights.
Many believe that posting photos or videos requires written permission, but this only applies if it is done in a private setting. It’s up to those who want to remain private create privacy and the intrusion of that privacy would then justify a problem. In the case of El Al, for example, curtains would need to be installed to reduce legal aerial photography. As property owners, they have a duty to provide privacy to prevent public photography of their equipment, personnel, or even their processes. Yes, his employees can also be photographed in public without recourse.
The Supreme Court has ruled that it is no expectation of privacy in public and that’s one of the reasons street photographers can take (and sell) any photos of celebrities they like. If one were to take photos in Times Square, neither the brands nor the people in the background need to approve the use of their image if it is taken in the street photography background. For this reason, passenger fights in airport terminals are not blocked by social media sites for lack of consent of the parties in the recording.
The only exception to this is audio recording of private conversations without the knowledge of the parties involved, and even that is not accepted as a requirement in all 50 states.
However, if Mr. Carley were a passenger on an El Al flight, his contract of carriage may limit his ability to take photographs. The rules and regulations for photography and videotaping are largely synonymous, and the airline can ban any passenger from taking pictures on board, as happened to Matthew on a United flight many years ago.
JFK’s T4 is privately owned
Terminal 4 of New York JFK is quasi-public, quasi-private. It’s privately owned (which I only recently realized) which means the terminal can set its own rules. Here is a Link to these rules. This is a no man’s land, however, as JFK’s T4 is the only private terminal in the United States. I believe that El Al’s representative did not enforce this solely because of ownership of that particular terminal at that particular airport. Travelers can test this theory at any of the other El Al gateways and report results.
While T4 has the express right to impose its own rules in its terminal, a private property right that I fully support and respect, I doubt this would stand up in court for the following reasons:
- It is reasonable to expect that the same rules and rights apply to all airport terminals in the US. A single exception out of thousands (perhaps tens of thousands of terminals) may not be appropriate.
- It is open to the public, in general a court would likely conclude that public rule expectations would apply.
- If T4 accepted 1¢ public funds for any cause (including the TSA), its rules would no longer apply – I don’t have financial records to confirm if they received federal funds, but I assume they did .
- Its rules (especially around the TSA) contradict that TSA Proprietary Rules regarding photography, which is expressly permitted.
- Connecting passengers who did not specifically choose to exit T4 would be able to take public photos anywhere on their journey except when boarding T4, which again is unreasonable.
- Forcing a traveler to delete photos taken is illegal. If we assume that a court would fully uphold T4’s rights and authorize this El Al representative on their behalf, the traveler could receive a subpoena for the photos taken, or face ejection from the terminal, or both. But the photos (and the phone they’re plugged into) would have to be used as evidence if it were a criminal offense at all (it isn’t), with a court having to order the photos removed after a guilty verdict and a court order.
Conclusion
Mr Carley explained that the El Al representative who approached him was strict and while that is his interpretation there is no reason not to believe him. The request itself could have been a courtesy request, but the subsequent insistence (and ensuing surveillance) on deleting captured photos (photos can be restored fairly easily on an iPhone) underscores that this was less of a request and more of an instruction. Would El Al send similar representatives In ‘N’ Out near Los Angeles International Airport, a famous planespotting place? Would it send someone to block photos along the freeway while the plane taxis to its gate? These requests are no less ridiculous than a person taking pictures from the terminal.
While I commend Mr. Carley for publishing his story, personally I would have kindly declined the representative’s request and if they had invited law enforcement to the interview I would have challenged that stance for as long as is necessary.
What do you think? Would you have complied with the El Al representative’s request?
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