You probably saw this bit of Internet virality earlier this week — showing a woman getting kicked off an American Airlines flight for channeling Whitney Houston.
What caught our attention was the sound of flight attendants repeatedly ordering passengers not to take pictures or (presumably) videos.
Apparently, it's an official rule at American Airlines:
"The use of still and video cameras, film or digital, is permitted only for recording of personal events. Unauthorized photography or video recording of airline personnel, other customers, aircraft equipment or procedures is strictly prohibited."
And other airlines have similar policies. United Airlines recently kicked a travel blogger off an international flight for camera use. Here's his version.
Jeff Hermes, director of the Digital Media Law Project at Harvard's Berkman Center, says the airlines are within their rights to do this. The plane is a private space, they set the rules, and if you defy them on those rules, you could be found guilty of a form of trespassing. Trespassing, because in most private spaces, you have the option of obeying the owner's rules or leaving the premises.
"There's an interesting issue when you talk about airplanes," Hermes says. "Because it's very clearly a situation in which — so long as you're in the air — you can't leave. So your only option is to comply."
The fact that airlines seem to enforce the rule arbitrarily — in this case, to try to head off embarrassing videos — doesn't undermine their legal position, Hermes says.
Mickey Osterreicher, general counsel at the National Press Photographers Association, says he had no idea that American had such restrictions, but that professional photographers have long had to deal with seemingly arbitrary rules like this. What's changing now, he says, is that those rules are starting to affect the general public.
"News these days is just as likely to come from somebody with a cellphone camera as somebody with a press credential," Osterreicher says.
While private companies can restrict photography on their premises, police officers may not. They often try, ordering people to stop videotaping them and sometimes arresting camera-wielding civilians and charging them with disorderly conduct or interfering with the police. But the courts have clearly stated that the public has the right to photograph the police, a right recently reaffirmed by the Justice Department.
The public's right to videotape police is being tested in a potentially explosive case in California, this week. The details are still unclear, but witnesses accuse law enforcement of deleting a video of a police beating.
Police may confiscate videos, if there's evidence of a crime and a warrant. But private entities, such as airlines, may not. No matter what the rules on a airplane, once you've shot a video, airline employees have no right to demand that you delete it or hand it over.
And once you have that video, you enjoy much greater freedom to "publish" it, such as uploading it to YouTube.
"If it's just a matter of something that's embarrassing to an airline, it's going to be hard for them to get it suppressed — to get it taken down," says Ryan Calo, a University of Washington Law professor specializing in privacy.
He says the First Amendment is "pretty generous" in this regard. "Even though the press are singled out by the very text of the Constitution, most of us enjoy many of the same rights that the press do."
MELISSA BLOCK, HOST:
This week, a strange thing happened on an American Airlines flight and it was captured on a video that's gone viral.
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BLOCK: A woman insistently channeling Whitney Houston forced the plane to make an early landing. The woman was removed from the flight but something else in the video caught our attention.
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BLOCK: No photos allowed. Can they do that? NPR's Martin Kaste looked into it.
MARTIN KASTE, BYLINE: They say they can. And while the faux Whitney Houston was being removed from the plane, you can hear the crew actively and insistently enforcing their rule.
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KASTE: A spokesman for the airline says a ban's audio, video and still image recording, except for recording what the company calls personal events. There are similar rules on other airlines. United recently kicked a passenger off an international flight for taking a picture.
Jeff Hermes is director of the Digital Media Law Project at Harvard.
JEFF HERMES: When a private entity opens up a space to the public that it owns, they retain control over what happens in that space.
KASTE: Still, in this case, American seemed to be enforcing its rules selectively just to head off bad publicity. Of course, businesses have always tried to control photography. For instance, the ag industry has pushed through state laws against activists who videotape inside slaughterhouses.
But what's changed, says lawyer Mickey Osterreicher with the National Press Photographers Association, is those company rules are now affecting the general public.
MICKEY OSTERREICHER: News these days is just as likely to come from somebody with a cell phone camera, as it is from somebody with a press credential.
KASTE: He agrees the airlines have a legal right to restrict photography. But he says the airline has no right to confiscate a camera or to demand you delete a file. And they certainly can't keep you from uploading it.
OSTERREICHER: If it's just a matter of something that's embarrassing to an airline, it's going to be hard for them to get it suppressed, to get it taken down.
KASTE: Ryan Calo, a University of Washington law professor specializing in privacy, says the First Amendment is pretty generous in this regard.
RYAN CALO: Even though the press are singled out by the very text of the Constitution, most of us enjoy many of the same rights that the press do.
KASTE: So, fellow journalists, the next time you get that tray table view of lunacy at 30,000 feet, you should feel free to share it with the rest of us.
Martin Kaste, NPR News. Transcript provided by NPR, Copyright NPR.