A traveler was recently stopped in an airport from taking photos of an airplane and observed while he deleted the photos. But can you legally take photos of 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 fellow travel writer, Chris Carley, arrived at a crowded Delta gate at New York’s John F Kennedy (JFK) Airport during a flight delay. He decided to do some planespotting and started taking photographs of a nearby gate for El Al, the flag carrier of Israel. A representative of the airline approached Mr. Carley as he was collecting shots of the airline’s 787-900 parked at the gate. Here’s his recounting as it appeared on his blog this week.
“Excuse me,” an EL AL employee said after appearing out of nowhere. (I know the Israeli airline’s security is legendary but, darn, this lady was stealth.)
She was not happy with me.
“Would you please not take pictures of the EL AL flight?” she said. The young lady was a good foot shorter than me — but her tone and glare were intimidating.
I really wanted to say (tongue-in-cheek), “Oh, it’s okay. I’m a travel blogger who also writes about credit card and loyalty points.” Something told me her sense of humor didn’t punch in for work that afternoon.
“Sure,” I said instead. Several people in the gate area were now watching 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 trouble here, ma’am.
“And would you please erase the pictures you already took,” she said. I intentionally omitted a question mark at the end of that sentence. She wasn’t asking me to delete them — she was telling me.
“No problem,” I said. Then she watched me delete each image, one by one.
She gave me a curt “thank you,” and walked back to wherever (the EL AL ninja team clubhouse?).” – Chris Carley, Eye of the Flyer
Implied Security Issues
As Mr. Carley implied, and El Al would have no doubt confirmed, El Al representatives were not likely to be concerned about the unlicensed use of their aircraft livery. Israel has faced a number of security issues targetting the country, its assets, and specifically the airline. Using photography or video recording to document procedures and movements of flight attendants, baggage personnel, or other crew members could be used for nefarious purposes. The same could be true about aspects of their equipment.
Can You Take Photos of Airplanes?
The supreme court has been clear that anyone can photograph in public spaces even for commercial purposes in the United States. Here are some aspects of the high court’s opinion:
- You cannot trespass the eyes (therefore, if it can be seen from accessible public property like an airport on federal land, it can be recorded)
- The First Amendment of the Constitution of the United States protects the freedom of expression but also the freedom of the press which applies to anyone who intends to publish anywhere (even on social media.) This does not mean that publication must take place as many stories are never picked up by media outlets.
- Law enforcement cannot make a protected activity a crime.
“When in public spaces where you are lawfully present you have the right to photograph anything that is in plain view. That includes pictures of federal buildings, transportation facilities, and police. Such photography is a form of public oversight over the government and is important in a free society.” – ACLU
Are There Legal Ramifications?
If Mr. Carley had declined the representative’s request – and that’s all it was – she may have engaged law enforcement to determine whether he was a threat. While police officers should respond to the call and conduct a casual encounter, which remains voluntary so long as he is comfortable continuing, the only law that officers can enforce is actually Mr. Carley’s as he has the right to be there, and is exercising his first amendment right.
With regard to federal facilities like airports (including the TSA), the Department of Homeland Security was clear in a 2010 memo that not only is photography allowed at their facilities, law enforcement is instructed not to impede. This was reiterated again in a 2018 memo:
“…this Operational Readiness Order reiterates the 2010 guidance; provides clarification on the public’s right to photograph publicly accessible federal facility building entrances, lobbies, foyers, corridors and auditoriums; and directs FPS law enforcement personnel and PSOs to maintain security without adversely impacting the public’s rights relating to photography and videotaping.” – DHS
Private Property
Many people confuse their privacy rights.
Many believe that written authorization is needed to be published in photos or videos but this is only true if it takes place in a private setting. It is incumbent on those wishing to remain private to create privacy and disturbing that privacy would then warrant an issue. For example, in the case of El Al, it would need to assemble curtains to reduce legal airline photography. As the property owner, they have a duty to create privacy in order to stop public photography of their equipment, personnel, or even procedures. Yes, even its staff can be photographed in public without recourse.
The supreme court has ruled that there is no expectation of privacy in public and this is one reason why street photographers can snap (and sell) all the photos of celebrities they like. Similarly, if one were to shoot photos in Times Square, neither the brands nor people in the background need to authorize the use of their likeness when captured in the background of street photography. This is why passenger brawls in airport terminals aren’t blocked from social media sites over a lack of consent by parties in the shot.
The one exception to this is an audio recording of private conversations without the knowledge of the parties involved, and even that’s 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 restrict his ability to photograph. The rules and regulations of photographing and videoing are largely synonymous and the airline can prohibit any passenger’s ability to collect footage once onboard as happened to Matthew many years ago on a United flight.
JFK’s T4 Is Privately Held
New York JFK’s Terminal 4 is quasi-public, quasi-private. It is privately held (which has only recently come to my attention) which does mean that the Terminal can set its own rules. Here is a link to those rules. However, this is somewhat a no man’s land as JFK’s T4 is the only private terminal in the US. I believe that the El Al rep did not solely enforce this due to the ownership nature of this specific terminal at this specific airport, travelers can test this theory at any of the other El Al gateways and report results.
However, despite T4 having the express right to impose their own rules inside their terminal, a private property right I wholly support and respect, I doubt that this would hold up in court for the following reasons:
- It’s reasonable to expect the same rules and rights to follow all airport terminals in the US. A single exemption out of thousands (perhaps tens of thousands of terminals) may not be reasonable.
- It’s open to the public, generally speaking, a court would likely conclude that expectations of public rules would apply.
- If T4 accepted 1¢ of public money for any purpose (including the TSA) its rules would no longer apply – I don’t have the financial records to confirm if they have received any federal funding but I assume this is the case.
- Its rules (especially around the TSA) contradict the TSA’s own rules regarding taking photos that are expressly allowed.
- Connecting passengers who didn’t expressly choose to depart T4 would have the ability to take photos of public anywhere along their journey except when they cross into T4 which is, again, unreasonable.
- Forcing a traveler to erase photos taken is not something permitted in the law. If we assume a court would absolutely uphold the rights of T4 and authorized this El Al rep on its behalf, the traveler could receive a citation for the photos taken or face ejection from the terminal or both. But the photos (and the phone they are on) would have to be taken into evidence if this is even an arrestable offense (it isn’t) whereby a court would have to order the removal of the photos following a guilty verdict and a court order.
Conclusion
Mr. Carley stated that the El Al representative that approached him was stern and, while this is his interpretation, there’s no reason not to believe him. The request itself could have been a courtesy request, but the follow-up insistence (and monitoring therein) for him to erase photos taken (photos can be recovered on an iPhone rather simply) underlines this was less of a request and more of an order. Would El Al send similar representatives to In ‘N’ Out near Los Angeles International Airport, a famous planespotting location? Would it send someone to block photos along the highway as the aircraft taxis to its gate? These requests are no less ridiculous than a person photographing from the terminal.
While I laud Mr. Carley for posting his story, I personally would have kindly, simply, declined the representative’s request, and should they have invited law enforcement to the conversation, I would have challenged that stance as long as necessary.
What do you think? Would you have complied with the El Al representative’s request?
T4 is privately owned, and are not subject to the same judicial rulings with respect to public photography.
T4’s policies provide:
Filming or photographing the interior and exterior of Terminal 4 is not permitted except for the following:
Taking pictures of family or friends for non-commercial reasons while at Terminal 4 is allowed at the discretion of the Terminal 4 supervisory and security personnel.
Filming for commercial purposes (including journalists, reporters and other professionals) is permitted only with prior written consent from JFKIAT management.
Putting that aside, El Al was effectively telling him to stop photographing the plane and delete the pictures, or he wasn’t going to travel with them, which was entirely within their rights under the conditions of carriage:
7.1.3 you fail, or have failed, to obey or observe safety or security instructions of, or obstruct or hinder, ground staff, aircrew or security personnel in the performance of their duty.
I get that he’s a fellow blogger, but he’s wrong and an idiot for not being aware that this was the likely outcome.
Sorry. Those grifting Apartheid jerks dont get to dictate how business is conducted in Murika.
If israel doesnt like it, they can keep their crappy little airline at home. And return the billions of taxpayer dollars they squeeze from the us taxpayer every year.
@Greg – Thanks for bringing this to my attention. I have added a note. That said, there a few reasons why I doubt this is the case principally among them is that if have taken any federal money at all, those rules go out the window. Many buildings, even public ones, post similar “rules” but are unconstitutional in nature and cannot be enforced (libraries are a prime example.) Additionally, it notes that you cannot take photos of the TSA or security areas which the TSA and Homeland Security have been clear you, in fact, can. Whose rights/rules prevail in this instance?
If you go to the TSA website with regard to photo policies, you will plainly see 1) photos are permitted so long as it is not of areas where privacy has been provided, and 2) that the flow of screening passengers has not been impeded. There is no exemption on the TSA website for JFK T4 which would be the only exemption if that was the case.
Condition of carriage wouldn’t apply as I mentioned in the post because he was flying Delta and happened by the El Al gate, he has no contract with El Al.
As Kyle addressed I very much doubt that a court would uphold the rights of T4 to regulate picture taking.
Furthermore the blogger wasn’t taking interior or exterior shots of T4 itself. He was photographing an airplane. Additionally only a representative of T4 can ask him to comply with their rules. Since there are no signs to this effect in T4 they would first be required to inform him of those rules and ask him to comply with them. They could not under any circumstances order him to delete any pictures he’s take. One they informed him of their rules as long as he ceased taking pictures he’d be in compliance and they would not have grounds to trespass him from the premises.
He wasn’t flying ElAl and as such isn’t subject to their contract of carriage. He’s also therefore in no way required to comply with the instructions of an El Al employee.
El Al’s aircraft are almost constantly in full public view. They operate from public terminals where there is an
unquestioned right to take all the pictures one desires. Pictures of El Al aircraft are all over the place especially places like airliners.net. What’s beyond stupid and idiotic is for an El Al employee to walk up to a person in a public terminal especially in the US and tell them not to take pictures of the exterior of an El Al aircraft.
i would have told the El Al lady to back off and leave me alone. i’m in a public place. Let her call security. I might have even taken her picture.
Photographing transportation venues and equipment was a hot topic following 9/11 on several of the photo boards, and yes, there were cases of amateur photographers confronted for shooting.
I was confronted in 2008 by a worker for taking photos in the Chicago subway. (https://omababe.blogspot.com/2008/02/beneath-windy-city.html) Although I had checked prior and found that photos were allowed, I decided not to escalate and feigned an apology and moved on (and continued shooting). 🙂
One of the more absurd, and more interesting “prohibitions” on photography was for Chicago’s Cloud Gate (aka The Bean) due to a misunderstanding of various laws. I was watched and followed as I photographed it but not confronted. (https://omababe.blogspot.com/2007/01/forbidden-images-polishing-bean.html)
Does she know that once you delete a picture on iPhone it goes into the Recently Deleted album and stays there for 30 days and you only need to press a button to recover it?
As someone who travelled through TLV and flew with EL AL on many occasions I think this might be a case of risk assessment by the EL AL security staff.
I think the request and the follow up were more of a way to gauge the photographers behavior and understand if he presents some sort of threat.
As others have noted, nowadays deleted photos are easily recoverable and as Kyle stated it’s virtually impossible to prevent them being taken.
This to me matches up with the classic behavior assessment done by Israeli security staff at all EL AL destinations.
As a patriot, I can’t say for sure (it would depend upon the circumstances such as how much trouble I could handle), but I would have first corrected her on her tone towards me.
It shocked me on one of my flights coming back from Europe that most were not smiling and trying to be invisible but I felt that this itself was unacceptable so I smiled and enjoyed getting a chance to stretch my legs. Apparently, I got profiled somehow and asked to open my bags and I chatted with the officer and said after 14 hours in a seat, I didn’t mind the conversation. She smiled and sent me on my way after confiscating a meat/cheese sandwich I had packed she gave to some drug dogs (and she got yelled at because they’re only supposed to eat when they find ‘stuff.”)
That’s largely my modus operandi and it has served me well in that they realize I’m experienced, but also not willing to hide so they wave me through. If she hadn’t adjusted her attitude, I would have called the airport police and asked their assessment of the situation, gotten names, and then erased my photos if necessary to continue but later reach out about it.
I used to take pictures with my Nikon camera of many airplanes when I was a kid. and I might today if I see some plane that is outstanding, I will take it with my phone. Nowadays it actually depends on where you are. If you happen to be in a less friendly country or place and it specifically says with a sign that ‘cameras or photos are not allowed,’ I wouldn’t take pictures of anything.
Exactly. Israel is definitely a “less friendly” country. Sometimes I just don’t understand why people go there for vacations. Don’t people know that there is a war in progress in Israel?
Happened to me too in HKG in 2019. A security lady also approached me and told me to stop taking pictures of EL Al’s beautiful 787-9 AND delete the pictures already taken or I would be denied boarding. As this happened at the gate area (therefore an entirely public space), I told her to mind her own business and invite the airport police if she saw fit. While I did stop taking pictures after the incident, I happily report that still have numerous pictures of the beautiful plane. Please tell Mr. Carley that I’ll happily share those photos with him if he wants.
Is anyone reading the newspapers? Israeli facilities and tourists are prime targets for Iranian backed terrorists. Try standing at the gate of a US military base taking pictures (in a public space) and see how long it takes for a guard to show up. Try the same number at passport control in any US airport. There is a reason why ElAl airplanes have only been hijacked once and that is this strict security. If you think that TSA screening obviates this, think again. One of my patients working for TSA at O’Hare tests fellow employees with fake plastic explosives in his luggage and manages to get them through “security” 80% of the time. There is always a delicate balance between individual rights and public safety. And yes, iPhone features defeated her attempt at removing the pictures, so if you are a collector of airplane pictures, great. And if you are a terrorist looking for a target, great as well.
@Eric – Thanks for your comments though I want to reply to some aspects. Taking photos of a US military installation will likely warrant a visit from a security guard, however, per the DHS memo and several court rulings, the encounters have to remain consensual, and photographing from public is absolutely allowed.
I’ll come back to the El Al security issue in a moment.
There’s no question that the TSA catches very little of what is sent through as a test and this is widely published. They catch even fewer guns which I imagine is cold comfort.
On the El Al issue: What could possibly be visible from the terminal that would bring down an El Al plane? And the rules and rights completely change for departures from other airport terminals including just across the water in Newark. They have photographs available on their website of the aircraft in question: https://www.elal.com/en/About-ELAL/About-ELAL/Investor-Relations/Pages/Our-Fleet.aspx – but that’s not a security issue. Incidentally, the same aircraft could be photographed without incident from terminals 2 or 3, or even during taxi or in the example I gave at LAX – none of these would result in security concerns. The suggestion that terrorists are gaining intel by taking photos of an aircraft on full public display is an absurd notion and if the carrier is that vulnerable, they should take greater care to protect their assets than barring photos from the one private airline terminal in the country.
Those making money, even humble google ad network boarding area revenue participants, off of the likenesses of strangers, still invite litigation from those adversely affected.
@Nico Z – I kindly welcome the legal challenge. It’s like suing someone for sneezing – there’s no legal basis for it so I’ll gladly see you in court. If those adversely affected could litigate for this sort of thing, even common journalism would go away. By your logic, I couldn’t take a picture to publish of my own child in the park because in the background might be someone visible holding hands with someone other than their spouse. Even those not making revenue from them could still publish on social media which would invite litigation according to your statement. It would be the end of photography.
Further, how would El Al prove they were adversely affected by a photo (that is otherwise publicly available) of their equipment? The case would be tossed out if it was even tried because there is no adverse affect. In fact, restricting the public photography of its equipment could adversely affect both parties (poor representation of their aircraft may not help El Al benefit from future writings) but would certainly adversely affect Mr. Carley who would have to license suitable imagery at his own cost.
From your lips to a jury’s ears!
I’m referencing non-public individuals being adversely affected by what you’re referring to journalism.
As for El Al, the behavior of the employee at JFK smacks of security theater. But look, she was successful in convincing a blogger, forgive me, journalist, to move a few snaps to the recently deleted folder. The real bad guys just might know more about the EL Al CSMART and related systems than can be gleaned from cell phone snaps. I’m thankful this system seems to have never needed to be engaged yet.
This is odd given that if you look on any of the photo boards like Jetphotos, you will find plenty of pics from places like TLV and strangely enough there are plenty of El-Al aircraft in them.
This is a tempest in a teapot that I very much doubt has anything to do with any El Al policy, to the extent that this really happened at all, or happened as the event has been conveyed. Airliners.net is filled with pictures of El Al planes from most every major airport in the world and those photos didn’t take themselves. We know from Matthew Klimt’s ejection from a flight after taking a photo on a United plane that sometimes you just encounter an authoritarian enforcing a “policy” that mostly exists in their mind.