I submitted my beta application on 8 Jan, and less than 24 hours later, I am the proud owner of an eCO account!

If you were waiting to enroll, this might just be a good time. Request your very own eCO account here.

UPDATE1: Fail.

An original design of a building embodied in any tangible medium of expression, including a building, architectural plans, or drawings, is subject to copyright protection as an “architectural work” under Section 102 of the Copyright Act, 17 USC, as amended on December 1, 1990. The work includes the overall form as well as the arrangement and composition of spaces and elements in the design but does not include individual standard features or design elements that are functionally required.

The term building means structures that are habitable by humans and intended to be both permanent and stationary, such as houses and office buildings, and other permanent and stationary structures designed for human occupancy, including but not limited to churches, museums, gazebos, and garden pavilions.

The circular elaborates on those works that cannot be registered, to include dams, bridges and walkways. It also explains in only slightly more detail what is meant by “individual standard features or design elements that are functionally required:”

Standard configurations of spaces, and individual standard features, such as windows, doors, and other staple building components, as well as functional elements whose design or placement is dictated by utilitarian concerns.

So, one could not photograph and sell a picture of a qualified building, but one could do so with pictures of the doors, windows and other oft-photographed features. In a way, this makes sense–photographs of individual features do not capture the whole of the architectural concept. On the other hand, such features are sometimes nearly as well-known as the structures to which they belong.

That said, one topic that I’m compelled to address is that of “stop and identify” (also referred to as “failure to identify”) laws, particularly those affecting citizens in the D.C. metro area. My aversion to legal proceedings in which I am on the receiving end kicked in during the 3701 incident, and my suspicion that I would be cited or detained for failure to identify was the primary reason that I provided government-issued identification (among other things) and ended up in this situation.

Stop and identify laws require that individuals identify themselves–to varying degrees, and under specific circumstances–when asked to do so by a peace officer. Stop and identify laws are controversial. So much so that a Nevada case from 2000 ended up in the United States Supreme Court (in 2004), where the justices held (5-4) that stop and identify laws do not, in fact, violate an individual’s fourth or fifth amendment rights. You can read more about the case on Papers, Please! (keeping in mind that this site has a stated agenda).

In the comments that follow my original article, Ron Summers indicates that Virginia is not one of the twenty-four states that have enacted a stop and identify law. Shortly thereafter, jetelo states that not only does Virginia have such a law, but that Arlington County has a similar statute all their own. Confused, I decided to do a little digging . . .

According to the list of states with stop and identify statutes compiled by StateMaster (which, incidentally, is a fascinating site) Virginia has no such law on the books. However, if we look at Virginia House Bill 1643, we see that stop and identify-esque verbiage was proposed in 2004 and brought to a vote in January 2005. It appears as though the vote passed, but was “tabled in Courts of Justice.” I’m not sure what that means (as far as the future of the bill is concerned), but as of the date of this writing, it does not appear to have been adopted.

Score: Ron Summers: 1. Jetelo: 0.

Satisfied that no such law appears to be on the books in Virginia, I continued my search to determine the status of stop and identify laws in a handful of D.C. suburbs.

According to Chapter 17, Section 13(c) of the Arlington County Code (“Peace and good order; loitering”): “It shall be unlawful for any person at a public place or place open to the public to refuse to identify himself by name and address at the request of a uniformed police officer or of a properly identified police officer not in uniform, if the surrounding circumstances are such as to indicate to a reasonable man that the public safety requires such identification.” Failure to identify is considered a misdemeanor.

Score: Ron Summers: 1. Jetelo: 1. Tie ball game. Push. Mexican standoff. Moving right along . . .

In the Fairfax County Code, Article 1 (“Offenses Against Public Peace and Safety”), there exists an “Identification” clause in Section 5-1-2(c), but this section is marked as having been “[r]epealed by 24-83-5.” I can find no further documentation related to this repeal code. Call it a win?

Near as I can tell, no such law exists in Washington, D.C. This means that the Park Police might not be able to demand that one identify one’s self. However, the presence of agencies such as the F.B.I, Secret Service, and Coast Guard–and the myriad anti-terrorism directives under which they operate–is a pretty clear indicator that, assuming they’re interested, either one’s name will be obtained or one’s ability to move about the city will be temporarily hindered.

Lastly, I thought I’d check in on Montgomery County, MD, parent county of Silver Spring, home of the now-more-or-less-resolved regional first amendment debacle of the year. The only provision for identification that I can find (Chapter 1-18, sub-section (b)(3)) requires only that individuals identify themselves if they are being issued a citation.

Whether I should have been aware of the these laws and related jurisdictions at the time that I was stopped is now a moot point. But I do feel a little better knowing that I wasn’t just dreaming up a scenario in which I’d be detained or otherwise cited for failing to identify myself to a peace officer. As it turns out, I didn’t need to provide any identification–Arlington County only requires that one provide name and address–proof in the form of goverment-issued identification is not required by the letter of the law. However, the suggestions made by a police officer when one is stopped are often interpreted as law. As a result, an officer suggesting that one provide proof of identification will, far more often than not, be interpreted as a requirement and not a suggestion.

This is Officer Malara, Arlington County Police Department, working a private detail commissioned by the occupants of 3701 N. Fairfax Dr., Arlington, VA.

Officer Malara stopped to take information from a friend and I on the grounds that he observed us taking photographs in a “high security area.” And by “taking photographs in a ‘high security area’” I mean being in possession of a camera while walking down the street opposite several blocks of non-descript office buildings, less than a block from the Virginia Square-GMU Metro station.

Unfortunately, that we weren’t breaking any law, nor were we disobeying any posted warning became a moot point once we were asked for identification (unlike public photography, failure to comply with a request for identification by a police officer is grounds for detention). So, we provided the information that was requested of us, were asked to delete any photographs that we had taken of the facility at 3701 (the photo above was the first that I’d taken), and off we went.

Could we have plead our case on the scene? Sure. Would it have done any good? Doubtful. Once you’ve been stopped and asked for identification, your options are more or less limited to compliance or a free ride to the county jail. Being harassed for photography in public sucks, but it sucks a lot less than being booked. More importantly, I had plans to meet family and friends for lunch at the Old Brogue, and wasn’t about to cancel on account of this nonsense.

So, what to do? I chose to file a complaint (PDF) with the Arlington County Police Internal Affairs Section (IAS). The following were submitted to IAS on 11 May 07:

• Incident Report (PDF)
• Internal Affairs Complaint (PDF)

A summary of my requests:

• A bunch of administrative information (I.e., chain of command, badge numbers, etc.).
• A copy of any related report filed within the Arlington County Police Department containing my name or identifying information.
• A copy of the policy or code section granting officers the authority to question and/or request information from individuals engaged in photography.
• A comprehensive list of locations within Arlington County that 1) may not be photographed and 2) display no indicators to this effect.

On 11 Jun 07, following several discussions with my investigator, I received the following in response:

• Chief’s Response (PDF)
• IAS Response (PDF)

A summary of the outcome:

• Aside from the flurry of paperwork generated by my complaint, I have no “record” in Arlington County.
• My information was provided to the security official at this installation.
• I now have the name and phone number of said official, who will soon be in possession of his very own FOIA request.
• These types of policies are, in theory, under review per the chief’s directive.
• I now have a copy of the Arlington County “Terrorism Intelligence and Prevention” policy, which grants police the right to stop persons in possession of dangerous things like cameras and binoculars.
• As expected, there exists no comprehensive list of locations within Arlington County that 1) may not be photographed and 2) display no indicators to this effect.

I lack the motivation to address the points in these responses one-by-one. But suffice it to say that, while I agree with the intent of this policy, I believe the implementation to be flawed. The intent, of course, is to protect . . . something. The implementation, on the other hand, does nothing more than perpetuate fear, and impose a hardship on law-abiding citizens.

These policies, containing vague terminology and lists of items that might at some point be used by someone to do something bad, exist so that the police can find just cause to stop people who legitimately give them the creeps. And to the extent that one of these policies might one day prevent someone from doing something really bad, I’m fine with them. But, as the chief points out in his response, meeting one of the criteria on such a list does not a suspicious person make. Officers are urged to “exercise appropriate discretion.” And in this case, I find it very hard to believe that exercise of appropriate discretion would yield that two young men, casually walking down a busy public street taking photographs, who happen to be opposite some unmarked but supposedly high security facility, qualify as suspicious.

Further, setting aside the issue of officer discretion, the most disturbing aspect of this incident is the simple fact that we had no way of knowing that we were acting in a manner that might have been so much as considered suspicious. If the subject in question is devoid of any type of external marking or warning sign, one should have no reason to suspect that it cannot be photographed (or approached while in possession of photographic equipment). And it follows that one should certainly have no reason to suspect that photographing such a subject might land one’s name on a list, or in a database. Reasonable, law-abiding people tend to avoid these types of things when it can be helped. Thus, my request for a list of locations within Arlington County that are unmarked, but at which photography is either prohibited or discouraged according to some (public or private) policy. Of course, such a list does not exist. Catch-22.

The absurdity of this type of situation is clear: We’re being penalized for violating poorly documented, questionably legal (an argument that I’m certainly unqualified to make) and arbitrarily enforced policies. We’re not being told what is expected of us. And to the extent that we are able, we need to take a stand. We need to know our rights, document the fact that we’ve been wronged, and work for change. And if we fail to enact change, the very least that we can do is make it such a pain in the ass to harass photographers that those who would otherwise jump at the chance will think twice, if for no other reason than to avoid a mountain of paperwork and an internal affairs investigation.

UPDATE1: For those who have expressed interest, I’ve compiled of list of sites where further discussion on this topic can be found. If I’m missing one (or more), please submit the link in the comments over there, as opposed to here.

UPDATE2: See my comment below regarding guidelines for discussion–they are few, and should not be unexpected. No racial slurs. No name-calling. No wishing other participants harm. And please don’t re-submit antagonizing comments because you think you’re being censored–I’m approving anything that doesn’t meet the criteria that I’ve just listed, as quickly as I’m able. Some type of site-wide, formal discussion policy to come . . .

UPDATE3: There’s some dispute in the comments as to the state of “stop and identify” laws in Virginia and Arlington County. It’s too much to cover in an update, so I’ve written more on the subject here.