This article was originally published in March 2018.

On a recent American Airlines flight from Santiago, Chile, to Dallas, Natalie Root had a front-row seat for an unpleasant confrontation.

The aircraft she boarded happened to be a new Boeing Dreamliner, and her friend, an aviation buff, wanted to snap a few pictures of the plane’s interior as it taxied down the runway. Big mistake.

“A flight attendant saw him because he had his flash on his cellphone camera, and she demanded that he immediately delete the picture,” says Root, a retired social studies teacher from Arlington, Virginia. “She accused him of photographing crew members, which he was not doing. She said it was a federal rule violation. Another attendant threatened to have the captain turn the aircraft around.”

Root’s friend erased the photos and was allowed to fly to Dallas, but the event left him shaken and humiliated, she says.

A review of my advocacy case files suggests that incidents such as the one Root witnessed are happening more often. It’s been a year since the David Dao debacle played out on social media, but it seems to have triggered a reflexive response against any passenger who dares to point their camera inside an airplane.

Dao, you’ll recall, is the United Airlines passenger forcibly removed from a flight from Chicago to Louisville, Kentucky last spring. His ejection, captured on video and widely shared online, led to a quick out-of-court settlement and a series of minor but necessary reforms. A string of copycat videos followed, which embarrassed other air carriers.

In the US’ Federal Aviation Administration reauthorisation bill last year, someone – it’s not clear who – tried to slip in a line that would have banned photography on commercial aircraft. It failed. Anecdotal evidence suggests that increasing numbers of air travellers such as Root’s friend are being reprimanded or threatened. Yet even amid the posturing, onboard photography remains something of a grey area.

In the US, there’s no federal law that prohibits in-flight photography. Instead, crew members invoke a regulation, 49 U.S.C. 46504, that forbids passengers from interfering “with the performance of the duties of the member or attendant or lessening the ability of the crew member to perform those duties”.

That’s been broadly interpreted to mean: Obey your flight attendants. And that includes, but is not limited to, their orders to stop taking their picture or to delete the images.

“Taking pictures of crew members working is not permitted by most US airlines for safety of passengers and crew as well as security of the cabin,” says Taylor Garland, a spokesperson for the Association of Flight Attendants, a union for airline crew members.

If there’s any evidence that taking a picture or video of the flight crew could place a passenger or flight attendant in danger, it is not widely known. What’s clear, though, is that stopping shutterbugs could prevent the next viral video. The reason: Air travellers will have been intimidated into putting their phones away.

“Photography and recording are protected forms of expression under the free speech clause of the First Amendment,” says Mickey Osterreicher, general counsel of the National Press Photographers Association (NPPA). But he says those protections don’t apply when individuals are aboard an airplane, because airlines are private companies.

United’s photography policy, which is typical for a US airline, notes that taking pictures or video on its aircraft is permitted “only for capturing personal events”. It goes on to note that “photography or recording of other customers or airline personnel without their express prior consent is strictly prohibited”.

Osterreicher, the NPPA attorney, agrees to a point with these prohibitions. “In the case of taking photos or recording video while on a plane, airlines may regulate such activity so long as they give notice of that policy, such as publishing it in an onboard magazine, and apply it even-handedly to all passengers,” he says.

Historically, airlines and crew members have taken a dim view of in-flight photography. Jan Lloyd, a former US flight attendant says passengers should keep their phones powered down and their lenses pointed away from the main cabin. If you’re caught, you’re off the flight.

“There are no votes taken on planes and there are no appeals,” she says. “There is no due process. The flight crew determines who stays and who goes on any flight. I’ve kicked a few off and had the TSA waiting at the gates.”

“(The airlines) don’t have the authority to force anybody to delete their photos or videos,” says Carlos Miller, who publishes the blog Photography Is Not a Crime. “So if you record something newsworthy, you should never delete the footage, no matter what they threaten.”

Domestic airline passengers often feel powerless. Their choices have been gradually removed, thanks to a series of government-sanctioned mergers and acquisitions.

Their personal space has shrunk, leaving them wedged tightly into their economy-class seats. And God forbid they complain about anything, because the flight crew can remove them from the aircraft by playing the “interference” card.

The situation in New Zealand

In New Zealand, there are no laws specifically prohibiting passengers from taking photos or filming on planes, but privacy rules could come into play.

The Office of the Privacy Commissioner said in a blog post in January that an airline had approached it seeking guidance on the rules, having noticed an increase in social media use on flights.

Generally, the Privacy Act says that taking photos or making recordings in public places is allowed, the Commissioner said. Typically, individuals taking photos or making recordings in a personal capacity run into any privacy issues.

“The vast majority of passengers will fall into this category, and if they were to make a recording on a flight, it will be in their personal capacity.”

However, it is good practice to seek permission if you are photographing or filming another person.

“This is also an important courtesy and respectful of the privacy of others.”

While passenger planes are considered commercial – and therefore public – spaces, airlines are entitled to restrict or ban photography and filming, the Commissioner said.

Jetstar has no such bans or restrictions but advises passengers “to be respectful of others’ privacy when taking photos on board”, a spokesperson for the airline said.

Air New Zealand has been approached for comment.

The Commissioner noted that individuals are not immune from privacy laws if the images they produce could be considered “highly offensive”. An example on an aircraft could include photos or footage of a passenger emergency.

“Is it acceptable for other passengers to film and publish online a mid-air medical emergency involving another passenger? We don’t think so. A medical situation would likely involve sensitive information about an individual who is vulnerable, and so this could be considered highly offensive.”

Whether or not an image or video can be classified as highly offensive is not clear cut, and the Commissioner suggested that airlines establish clear guidelines for crew.

An image or video that embarrasses an airline is not necessarily highly offensive in Privacy Law terms.

“The case involving United Airlines and David Dao on a US domestic flight is a famous recent example.

“Ultimately, all parties should exercise restraint, consideration and common sense on a flight, as they should in other walks of life. If you wouldn’t want someone to do it to you, don’t do it to others.”

The case for photography and filming on planes

Imagine a world where passengers had been reluctant to shoot footage of Dao, or to shoot any of last year’s other viral videos. There would have been no congressional hearings, no policy changes, however small, and United probably wouldn’t have settled with Dao.

And that’s why the mobile phone is your last, best weapon against bad airline service. Everything else has been taken from passengers. But we still have our phones. We should be ready to use them.

– The Washington Post and Stuff

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