Not only unaccountable, but invisible
Posted by aogSaturday, 28 July 2007 at 09:28 TrackBack Ping URL

The BATFE has filed a legal complaint which, as a basis, claims that ordinary citizens cannot photograph or record public officials in public places doing public things while on official duty. Only “authorized journalists” can do that, and the BATFE claims sole jurisdiction to make that determination when BATFE agents are involved. I am just left wondering at the mentality that causes someone to enter public service then do things they know are unpopular with said public. But the BATFE hasn’t been much for logic and coherence for quite a while.

Comments — Formatting by Textile
erp Saturday, 28 July 2007 at 12:05

Another case of trying to push the genie back in the bottle.

David Cohen Sunday, 29 July 2007 at 10:24

In this very specific circumstance, I’m with BATF. This is not a “complaint” in the technical sense — BATF are not initiating legal action. Apparently, they’ve been sued by a gun dealer they’re having trouble with. I have no idea who’s right on the underlying claim. I’m perfectly prepared to believe that BAFT has overstepped its bounds but they’ve been given the right to inspect Red’s Trading Post by the court and, from the facts they allege, there’s no doubt that Red’s is trying to intimidate them. In particular, the description in AOG’s post about what’s going does not agree at all with what BATF says in its court papers. BATF is not saying that only journalists can photograph them in public. It specifically says that if all that was happening was that a Red’s employee was photographing them that would be okay. What they want — and it seems reasonable to me — is that someone who has blogged that BATF agents are jackbooted thugs who should be hung from the nearest tree should be ordered not to publish pictures of them, their rental car and the address of their hotel while they’re in town.

Annoying Old Guy Sunday, 29 July 2007 at 13:44

That was an anonymous comment on the weblog, as even the BATF acknowledges in the footnotes.

I also note a couple other things in the document, presumably things that the BATF believes are accurate, since they wrote the document.

  1. The BATF, at the time they scrubbed the inspection, had knowledge only that their picture and that of their car had been taken and considered that of itself harrasment and intimidation.
  2. Previously, someone had video taped the BATF agents doing the inspection. The BATF claimed that such video tape could only be used with the permission of the BATF.

The BATF certainly hasn’t objected to having their picture taken when it suits their purpose (e.g., the siege at Waco). Given that digital imaging surveillance is the unavoidable future, I believe it is important to set the precedent that it applies to citizens monitoring government agents as long as it’s official business in a public place or citizen owned location.

I would willing to support restriction of publishing non-public information such as the hotel room — that doesn’t fall in the public sphere. The rental car, however, should be permitted. It would be significant in any future dispute about the sequence of events.

David Cohen Sunday, 29 July 2007 at 21:18

1. I said that wrong, but the fact that the threat is from a commenter is the point. Red knows the information — posting doesn’t change that. What posting does is inform others, some of whom have threatened BATF, of what the agents look like, where to find them and what car they’re driving. I don’t see that it’s unreasonable of BATF to worry about that.

As for the order in which things happened, I get the feeling they know Red pretty well. Also, they knew while they were at the store that his blog had been updated to say that they were there while pictures of the agents and their car had been taken with a digital camera. So their decision that they were at some risk was based upon articulable facts. But I don’t see what the relevance is. All the court can deal with is what’s happened to cause BATF to seek assistance and, as the facts are set forth, I think what they’re asking for is reasonable.

As for the statement that videotape of a previous inspection can’t be used for any other than private purpose without BATF’s permission, that does strike me as a little overbroad (although even people in public places have a right not to have their image used commercially without their consent). But BATF isn’t, here, trying to make anything of that.

Annoying Old Guy Monday, 30 July 2007 at 08:24

I am not sure I read that note as a threat, rather than over the top rhetoric. If someone pastes a “die, BATF!” sticky note on the outside of Red’s shop, would that constitute a threat for which Red’s was responsible as well? And other than the hotel, there’s nothing in the post that wouldn’t be known to someone posting such a note.

Apparently my legalese is rusty, but I honestly can’t figure out from the document what the BATF is asking for, so I can’t judge whether it’s reasonable. I do think, however, that the complaint indicates that BATF believes that their public activities involving citizens should not be recorded by anyone except BATF and “authorized journalists” (they make quite a big deal about ascertaining whether the photographer was such, so they must think it an important distinction). You write

people in public places have a right not to have their image used commercially without their consent

True but irrelevant. The difference is that these are government employees on public government business. That makes it public domain, just like getting a government research grant makes your work public domain, even though people have a right to not have their words used commercially without their permission. I think it would be a very bad precedent to say that citizens can’t document their interactions with agents of the government.

David Cohen Monday, 30 July 2007 at 15:24

You say that the fact that the BATF (as the saying goes, add strippers and you’ve got yourself quite the bachelor party there) employees are work for the government makes certain information about them, but not all information, “public domain.” That’s a respectable point of view, but not the law as it stands. You start off by criticizing BATF for taking a wildly unreasonable position, but that’s not what this is.

Early in law school, we learn that the most important thing to know about a case is the “procedural posture:” who’s suing, what stage the case is at, who lost below, etc. What seems to be happening here is that BATF is having trouble with Red, it’s been given the right to inspect more often than usual, and it’s arguing that what Red is doing is interfering with the court-approved inspection regimen. They specifically don’t say that Red shouldn’t be allowed to take their picture or even video the inspection. They say the opposite; that mere picture taking wouldn’t have stopped the inspection. It is the obvious threat of publishing identifying information and where they can be found that, they say, ended the inspection early. In other words, what they seem to be saying is that Red is purposely interfering with the inspection just as much as if he locked the door and didn’t let them in.

tom c.,stamford,ct Monday, 30 July 2007 at 21:42

In a citizen vs state case it would seem reasonable to an American, at least, that the burden of proof lies with the state. Leave the poor jerk alone. Red’s pawn shop, or whatever it is, PAYS the salaries of these schmucks. American citizens should rightfully expect to be left alone in the vast majority of circumstances. Individual employees of the state have no rights vs citizens unless SPECIFICALLY granted by the citizens as opposed to being granted by the state, (the state has no just power to grant rights since the state has no powers other than those delegated to them by the citizens). The progressive era hangover is hanging on. Tell me, David, what are the ‘rights’ of BATF agents? What are their limits? True, they may not be ‘initiating legal action’ but why should they when they can do anything they want? They work for ‘RED’. If ‘RED’ wants to take their photograph, he should take it. It’s kind of amazing to think that agents of the state can be intimidated when the coercive power is rightfully in the hands of the state alone. In a free country, employees of the state invloved in domestic activities have NO right to anonomity.

Hey Skipper Tuesday, 31 July 2007 at 01:49

What tom c. said.

Why should the BATF agents have any expectation of privacy?

In a similar situation (maybe I read about it at Volokh), the ACLU appears ready to sue a city to stop it using automated license plate reading equipment (is able to ID which part of passing cars are license plates, then scan, translate, and interrogate the license number).

Near as I can tell, drivers have no expectation of privacy in that situation, either.

If there is a meaningful difference, it isn’t apparent to this non-lawyer.

Michael Herdegen Tuesday, 31 July 2007 at 06:04

I’m all for automatically comparing vehicle registrations to warrents outstanding, and so forth.

Driving is an activity that calls for both skill and restraint, or it may be deadly to those around the offending vehicle operator, and so IMO it’s a matter of public safety.

If you don’t want to be scanned, hire a taxi or limo.

David Cohen Tuesday, 31 July 2007 at 18:32

I don’t disagree with much you guys say in a vacuum, but you’re ignoring what’s going on here. BATF is not saying that Red doesn’t have the right to take their picture, or even their license plate.

It is saying that it didn’t complete a court-allowed inspection of Reds based on the following facts: commenters on Red’s blog have said that BATF employees should be killed, Red blogged their presence while they were there, Red took their picture and the picture of their license plate. Based on those facts, they felt threatened and left. Later, it turned out that Red also published their hotel. They didn’t claim that Red didn’t have the right to blog, or take their picture, or their car’s picture. All they seem to be saying is that because of those facts they felt threatened and because they felt threatened they didn’t complete the inspection. Their fear seems perfectly reasonable to me. My guess is that they are going to argue to the judge that, because their concern was objectively reasonable, it is Red’s fault that they couldn’t inspect the Trading Post and that Red will either get in trouble for interfering with the inspection, or be ordered not to blog the inspection until after it is over. BATF’s actions, as opposed to some of its claims, seem perfectly reasonable.

My guess is that you guys would have a different opinion if you noticed a bearded, swarthy man blogging his trip through a TSA checkpoint, complete with the names and pictures of the TSA employees inspecting his shoes.

Annoying Old Guy Tuesday, 31 July 2007 at 22:17
  1. Commentor, singular.
  2. Why, then, bring up the issue in the complaint of whether the photographer was a professional journalist?
  3. I am not going to claim that Red’s behavior wasn’t intended to be annoying and harrassing, but welcome to a free society.

To me, the essence of the BATF’s argument is that public dissemination of their public activies in performance of their public duties is sufficiently harrassing as to prevent them performing those duties. If allowed to stand, then what limits will exist on citizens recording such activies?

We are just reading the situation differently, my reading being strongly influenced by previous actions of the BATF, as opposed to considering just this situation in a vacuum.

David Cohen Wednesday, 01 August 2007 at 07:07

Do you think that it was rational for the BATF employees (who apparently are not law enforcement agents and are not armed) to feel threatened?

Annoying Old Guy Wednesday, 01 August 2007 at 08:57

From a single, hyperbolic anonymous comment on a weblog? No. From the posting of the hotel information? Yes.

cjm Saturday, 04 August 2007 at 09:56

public officials should conduct their business in the nude.

Annoying Old Guy Saturday, 04 August 2007 at 13:45

Oh, please, no. I’d let webcams in my house before that.

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