Watching the Watchers: Is Recording Airport Security Illegal?

By now, it seems like everyone on the Internet has weighed-in on the TSA body scanners and pat downs. It hasn't taken long for videos and audio recordings of inappropriate TSA procedures secretly taken in security lines to begin leaking onto the internet. A big unanswered question for travelers right now is, "Can get in trouble for recording how the TSA is treating (or mistreating) me?"

As recently as November 20th, a San Diego man was arrested when he who consented to a strip search but didn't submit to the subsequent pat down. When security found out he had recorded his encounter with TSA with his iPhone, he was also charged with "illegally recording the San Diego Airport Authority" an alleged violation of of San Diego Airport Authority rule 7.14 (a). In addition to the charge, security confiscated his iPhone.

So the question seems more important than ever: can California travellers legally record how airport security treats them?

Federal law allows recording in most situations but local and state rules usually prohibit it

This isn't the first controversy surrounding recording airport security. In 2009, a fundraiser for a libertarian political organization was detained because he was carrying a cash box filled with $4,700 of political contributions. Using his iPhone, he secretly recorded his encounter with TSA where he believed his rights were violated. As of last year, he planned on using the recording as evidence to support a lawsuit against the TSA for unlawful detainment.

In a situation where who is at-fault becomes a game of "your word against theirs" a full recording would be the best kind of evidence to set the record straight quickly and easily. Cell phone and PDA technology allows that. The only problem is that even though Federal law has relatively lax guidelines for recording airport security, local California airport regulations place total prohibitions on recording for any reason.

For example, Section 7.14 of the San Diego County Regional Airport Authority Codes which governs safety and security in San Diego airports, has a very clear rule on all sound and video recording.

(a) No person shall take still, motion or sound motion pictures or voice recordings on the facilities and airports under the jurisdiction of the San Diego County Regional Airport Authority (the “Authority”) without written permission from the Authority’s Executive Director or his or her designee.

(b) Filming of X-ray equipment located on the facilities and airports under the jurisdiction of the Authority is strictly prohibited. Any person(s) caught filming such X-ray equipment may have their film confiscated.

The regulation is so broad, it doesn't simply restrict your ability to video record a TSA inspection; these rules, if enforced, would even prohibit tourists taking photographs of the airport art, parents taking pictures of their children about to get on a plane for the first time, video blogging, podcasting, recording dictation, etc.

Arguing that this local prohibition on recording at the airport is unconstitutional may not get you very far because of the precedent set in Supreme Court cases like International Society for Krishna Consciousness, Inc v Lee, 505 US 672 which held that "An airport terminal operated by a public authority is a non-public forum, and thus a ban on solicitation need only satisfy a reasonableness standard."

Said differently, the Supreme Court has ruled in 1992 that a public airport (the vast majority of airports normal travelers fly out of) is not a place where you have unlimited rights to free speech and expression under the constitution. Any Federal, state, or local law that takes away or limits your First Amendment rights simply has to be "reasonable" (have any common sense reason for existing) to be upheld as constitutional. So despite the common misconception that local regulations like San Diego's are unconstitutional and that "you have the right... to document what happens to you" in the airport, this is simply not the way the law works right now.

What may happen to you if you decide to record and get caught

Since it's clear that it's constitutional for the local rules to strictly prohibit recording for any reason, the better question to answer may be, "What will happen to me if do record airport security?" That's difficult to know. The full text of the San Diego  Airport Code is not publicly available to determine what the penalties may be.

Moreover, other than the November 20th incident in the beginning of the the article, we could only find one other example of the rule being enforced. Recently, another woman was ticketed in San Diego for videotaping the TSA screening process. In the woman's case, her camera was confiscated and she was given a citation and released from Harbor Police custody. No information is available on the cost of the ticket.

So what can happen to you if you decide to record airport security, get caught, and they decide to enforce the rule against you? The least that will happen is you'll get you'll get your camera taken away. The worst may even be full arrest.

Conclusion

You do not have a constitutional right to record inside of an airport if a state or local rule exists prohibiting it. These rules only seem to be enforced though when there's a reason why airport security is already upset at you (refusing to be searched, videotaping TSA monitors). In conclusion, try not to get anyone angry, and it will be less likely that you will get in trouble. Finally, it's understandable that it's difficult to find out about the state or local airport recording laws of everywhere you travel, so you may want simply to monitor news stories to see if anyone in the state has been ticketed for recording. If so, record at your own risk.

If you have any questions about your rights to record in public, feel free to contact New Media Rights at (619) 591-8870 or through email at support@newmediarights.com ... New Media Rights is a free, non-profit legal clinic that counsels on copyright, trademark, and cyberlaw issues with a mission to empower citizen media.

Photo Credit: Notice of TSA Baggage Inspection by JohnRiv