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.
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
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.
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?