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How Taking a Photograph Can Land You a Visit from the FBI

In 2004, photographer James Prigoff parked his rental car outside the fence surrounding a privately owned industrial site in Dorchester, Massachusetts. The object of his interest was a natural gas storage tank decorated with a mural by nun and pop artist Sister Mary Corita Kent. Private security guards asked him to relocate twice, so in the end he didn’t get the best angle of Corita Kent’s colorful Rainbow Swash (1971). Instead, he got something he hadn’t bargained for—a visit from the government’s Joint Terrorism Task Force and his name on a Suspicious Activity Report (SAR).

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Jonathan A. Loeb, a partner at Blank Rome, worked on behalf of the plaintiffs while at Bingham McCutchen (current Blank Rome of counsel Jeffrey Rosenfeld also worked on the case). “The issue here really does come down to security,” Loeb explains. “Anybody who is legitimately taking photos could assert their rights under the First Amendment, as long as it’s not a protected area.” He gives the example of airport security as a protected area. “You can take the photo, but law enforcement can inquire as to why.” Even if that conversation goes well, though, there might be repercussions—such as landing on a SAR.

So what did the government think Prigoff was doing? “Corporate espionage and trade secret theft is rampant,” explains Loeb, and it’s a national security concern. Working in Los Angeles, Loeb has seen plenty of cases of harassing and stalking enabled by telephoto lenses (hello, paparazzi), so he’s clear about the ways in which privacy concerns curtails First Amendment rights to photography.

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"How Taking a Photograph Can Land You a Visit from the FBI," by Daisy Alioto was published in Artsy on June 20, 2017.