California Lawmaker Proposes Jail Time for Posting Photos

Published May 1, 2009

A member of the California Assembly has introduced a bill to require Web sites such as Google Maps to blur photos of schools, churches, government buildings, and hospitals.

AB 255, introduced in February by Assemblyman Joel Anderson (R-El Cajon), would apply to the operator “of a commercial Internet Web site or online service that makes a virtual globe browser available to members of the public.”

By “virtual globe,” Anderson means common Internet mapping services that show photos of the street and buildings for a particular address.

Executives of companies violating the proposed law would face up to three years in prison and a fine of $250,000 for every day they publish images of the buildings.

Newspapers, magazines, and books that routinely publish photos of public and private buildings would be exempt from the law.

Experts Concerned

Anderson’s bill raises serious constitutional questions, particularly regarding freedom of speech and the press.

“I think Mr. Anderson is beyond the legislature’s U.S. constitutional reach in this,” said Chris Collins, an intellectual property attorney with the Vanderpool, Frostick & Nishanian law firm in Manassas, Virginia. “There are immediate problems with the way the proposed legislation is crafted.

“Assuming the vagueness is remedied, however, the attempt to regulate free speech in terms of printing photos, commentary, etc., is blatantly and unnecessarily restrictive,” Collins continued. “Remember, free speech, like most of our rights, can be restricted under appropriate circumstances. Here, there is no reasonable justification for the infringement of the First Amendment rights.”

Anderson Defends Bill

Anderson told CNN in a March interview his bill is meant to address “security issues.”

“I looked at where we’ve had security issues in the past and potentially might have issues in the future,” Anderson said. “Churches and synagogues have been bombed. So have federal buildings, and then, of course, 9/11.

“So the threats are out there, and as a state legislator, public safety is my No. 1 job,” Anderson continued. “To ignore that fact would be irresponsible.

“After the Mumbai attacks, the Indian government found that the lone surviving terrorist used Google’s online maps and the level of detail it offered made them effective,” Anderson said.

Down the Slippery Slope

Collins says Anderson makes a “farcical” distinction between print and online media, targeting the latter and excluding the former. While understanding the assemblyman’s desire to protect the public, Collins says Anderson is going down “a slippery slope.”

“Any small infringement on free speech for a ‘good’ reason can easily lead to greater infringements in the future,” Collins said. “Each tradeoff of rights for protection must be carefully examined. In my opinion, Mr. Anderson’s tradeoffs do not reach the appropriate level of justification.”

Anderson challenged his opponents to fight his bill in the courts if it passes.

“They can take it to court,” Anderson told CNN. “But since when do you have a First Amendment right to yell ‘fire’? This falls under the same category.”

‘Strict Scrutiny’ Standard

Jon M. Garon, professor of law at the Hamline University School of Law in St. Paul, Minnesota, says the “content-based regulation” in Anderson’s bill “would need to meet the strict scrutiny test under the First Amendment to be constitutional.” Garon doubts it does.

“The proposal is quite vague, not narrowly tailored to the legitimate efforts to confront terrorism, and not the least restrictive manner to protect these sites from terrorism,” Garon said. “Simply put, if the concern is terrorism, then legislating building requirements for access control to these facilities would make much more sense than a speech ordinance restricting the legitimate users.”

The law might meet constitutional muster, Garon said, if it were tailored like California’s “paparazzi” laws designed to protect the privacy of individuals in and around their homes.

Local Law, Global Issue

Jeffrey Johnson, a partner with the New York City law firm Pryor Cashman, said the proposed law would not achieve its desired effect because the Internet is so much bigger than California.

“This is a great way to give online service providers located in other countries a leg up in their efforts to compete directly with Google and other search engines located here,” Johnson said. “Even if no direct competitor emerges, it seems entirely plausible that, for example, Google might establish a not-for-profit dedicated to educating people about the planet, and offer the service via that ‘non-commercial’ Web site.”

Technology Would Trump Law

Vishal Sharma, a Mountain View, California-based telecom consultant, sees additional problems with the law.

“Because of the archival nature of the Internet, it is entirely possible that thousands, possibly millions, of photographs would be available on different sites and blogs,” Sharma said. “Those images may be accessible to terrorists even if the operators of the companies themselves adhere to the law. So it would be very nearly impossible to regulate or remove all of these photographs that already exist from the Internet.”

In addition, Sharma says, video, not static images, is the future of the Internet.

“Even if we applied the law from this point forward,” Sharma said, “a company like YouTube would have to edit millions of current and future videos to keep such images blurred.”

Phil Britt ([email protected]) writes from South Holland, Illinois.

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