Photographer’s Rights and Counter-Terrorism

There is an interesting article over at LBPost.com about a recent confrontation (actually that term might be a bit overblown) between a photographer and a police officer over the issue of taking photographs of a chemical facility. The photographer claims he was detained, but it appears from his description that he was stopped, questioned and required to show identification. The civil libertarians are incensed and the police are confused about their concern.

This is an issue that I have addressed before (most recently last December) and it is certainly a controversial issue, weighing security needs against individual freedoms. Let me see if I can outline both sides of the issue.

Counter Surveillance

It is well established that a ‘professional’ terrorist needs to collect information about their targets to aid them in the planning necessary for a successful attack. Pre-attack surveillance can take a lot of forms, but a common one would be to take photographs of the facility, particularly the security measures.

It doesn’t take a security expert to realize that detecting a potential attack early in the planning process makes it easier to disrupt the attack. This is the reason that I have frequently commented that a successful facility security program must include a counter surveillance program to try to detect potential attacks in the pre-attack planning process.

So, anytime someone is seen taking photographs of a high-risk chemical facility, there is legitimate need to determine if the photographer is potentially taking pre-attack surveillance photos of the facility.

Photographer Rights

Generally speaking photography is a constitutionally protected activity under at least three different types of free speech. Since much photography is often connected with journalistic endeavors the freedom of the press provisions may apply. Photography is also a well-recognized art form and thus protected under general freedom of expression provisions. Additionally, many political organizations, like Greenpeace, use photography to support their political agenda which is also clearly protected under free speech provisions.

So, as long as someone is not violating some other law, like trespass, it will be difficult to legally stop someone from taking photographs of a chemical facility. Even if a legitimate rationale can be found, the firestorm of protest that would result would be counterproductive to say the least.

Balancing Act

As can be seen through this article, balancing the two legitimate requirements of community security and personal liberties is going to be a hard line for police departments to follow. Private security forces are going to have even a greater problem with this as there are already too many people that think such forces are a threat to civil liberty in the first place.

A great deal of care and planning is going to have to go into any encounter with someone taking photographs of a chemical facility. Security managers are going to have to think the process through and establish specific guidelines for such encounters and make sure that they are frequently covered in their security training program.

The presumption that is going to have to guide these encounters is that the vast majority of people taking such photographs are not terrorists. If security personnel can keep that in mind they will be better able to avoid taking a confrontational approach with the photographer. The goal should be to determine if there is anything in the actions or demeanor of person that is not in keeping with an innocent reason for taking the pictures. If there is, that should be reported to law enforcement authorities for follow-up investigation.

Remember, even if the photography is in support of pre-operational planning for a terrorist attack, it does not mean that an attack is imminent. The simple act of professionally talking to the photographer might be enough of a show of security presence to convince the terrorist organization to look for an easier target.

Reader Comment 05-28-10 Counter Surveillance

Last week we had a very informative reader comment posted to my earlier blog on Counter Surveillance. Jim Lupacchino, from Day & Zimmermann Security Services, provided some additional examples of why a comprehensive counter surveillance plan must be an integral part of a facility security plan; well worth reading. TAPI Jim introduces a term that is new to me, Terrorist Attack Preincident Indicators (TAPI), but jargon in any active industry is always changing. Jim describes this as the “patterns of behavior that are matched with known terrorists methods of operation”. Obviously these patterns are subject to change over time so it is important for the intelligence community to keep us up to date on how these patterns are changing. One thing is certain though, terrorists will continue to need to perform pre-attack surveillance if they want to have a decent chance of conducting a successful attack. This means that a facility with an active and effective counter surveillance program has a good chance of detecting and allowing law enforcement to prevent the attack before those terrorists have a chance to put the facility, its employees or neighbors at actual risk. Training Jim makes another very important point, training is key to an effective counter surveillance program. He also makes a point that I haven’t seen made elsewhere, that training needs to be targeted. He wrote:

“This training is most effective when customized to the roles and responsibilities of various departments. From Sales to Shipping, threat based awareness will take different forms reflective of the unique function's environment.”

While everyone needs to be aware of suspicious behavior near the facility boundary, there are other types of pre-operational intelligence gathering that may only be detectable by specific departments within the company. Sales personnel need to be aware of orders for Theft/Diversion COI from unusual or unexpected customers or unusual delivery locations. Human resources personnel need to screen job applicants to prevent workforce infiltration. Receiving personnel need to be aware of unusual questions about inbound shipments and receiving procedures. Every department is going to have specific counter surveillance requirements. I want to take an additional opportunity to re-emphasize a point I made in the original blog posting. Every high-risk facility needs to expand the perimeter of their counter surveillance program as far beyond the physical facility perimeter as possible. This means that they need to solicit active participation of the surrounding community. Of course the facility should already be talking to the community as part of their community right-to-know program, but facility management needs to actively ask for counter surveillance assistance from their neighbors; it is in the best interest of the locals to prevent a successful attack on the facility. Law Enforcement All of the best pre-attack counter intelligence information in the world is totally useless unless it is communicated to law enforcement. Waiting for the suspected attack to happen, even with increased on-site security ready to ‘repel boarders’ is still asking for a successful attack. One thing that the military has long understood is that there is never enough intelligence to provide 100% assurance of being able to defeat an attack. No, the only real way to prevent the possibility of an attack that actually results in the release of hazardous chemicals is to interdict the attack well beyond the perimeter fence. Since facility security forces have no authority to act off-site, facilities need to rely on law enforcement for these interdiction operations. This requires the sharing of counter intelligence information with local law enforcement personnel as early as possible. High-risk chemical facilities need to establish an active counter intelligence relationship with local law enforcement. Law enforcement needs to be made aware of the counter surveillance activities at the facility and in the local community. Actively involving the police intelligence collection effort in the facility counter surveillance plan will significantly extend the facility intelligence perimeter.

Counter Surveillance

Long time readers of this blog will be well familiar with my consistent calls for high-risk chemical facilities to establish counter surveillance programs as part of their security planning. Two internet articles, one from London and one from here in the US, from last week take a brief look at formal counter surveillance programs established by government agencies look at some of the issues that face such programs. Security Guard Interactions The program in London provides training to local security guards in how to deal with individuals taking pictures or making sketches of public buildings. The article points out the concerns of civil rights activists that the program has security personnel and police unlawfully stopping people for doing nothing more than taking pictures, hardly an illegal activity. Anyone setting up a counter surveillance program needs to take care to ensure that their legitimate security efforts don’t trample on the civil rights of the public. While taking pictures of chemical plants is less likely to be an action taken by simple tourists, there are still a number of legitimate reasons for people to be taking such pictures. Chemical safety and environmental activists all have a politically protected right to take such pictures as long as they don’t trespass on facility property. There is nothing wrong with security personnel talking with such off-site observers as long as care is taken to ensure that nothing in the actions and demeanor of those personnel that would indicate an effort to ‘detain’ the off-site personnel. Politely asking who the people are and why they are taking the pictures is unlikely to raise civil rights concerns. Crossing the line by demanding to see identification or blocking the movement of individuals or their vehicles until the police arrive should be avoided unless there is some other clear indication of obviously illegal behavior. Extensive training, vetted by company legal staff, needs to be provided to security personnel interacting with non-company personnel. Having said that, taking pictures of a high-risk chemical facility is an action that might be an indicator of a pre-attack terrorist planning process. Terrorist would need that type of detailed facility information to conduct target selection and planning activities. Identifying people conducting this type surveillance activity is a key part in preventing terrorist attacks. This makes identifying personnel taking pictures of a chemical facility a key intelligence activity. General Public Observations The second article looks at providing training to non-security personnel to report suspicious activity. The program sponsored by DHS relies on the fact that people working in the community have a better chance of observing suspicious activity than intermittent police patrols. They may spend more time in a single area making them more attuned to what is normal and what is abnormal. High-risk chemical facilities can utilize local neighborhood organizations to perform a similar function. The facility neighbors have a strong self-interest in helping to detect potential terrorist attacks that would directly affect the local population. Since management needs to be talking with these same people on emergency response planning matters, they might as well be asking these same people to help identify unusual individuals that show an interest in the operations of the chemical facility. To be effective any such observation program needs to include a reporting procedure that is simple and encourages participation. A phone number needs to be made readily available to the local population. More importantly there needs to be a positive person on the receiving end of that phone call that knows how to ask questions to draw out additional details. A voice message system is unlikely to inspire continued participation. Facility employees can be trained to accept these calls, but it would probably be more effective if trained security or law enforcement personnel handled this.