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Man Told He Is Guilty Of Felony For Videotaping Whale

Hans Welch responded to a call for volunteers from the Marine Mammal Conservancy where they needed help with pilot whales that had been stranded off the Florida Keys.

At one point last Saturday morning, the Miami resident was in the water holding the pectoral fin of a stranded whale.

It was obviously a very unique experience, so he pulled out his waterproof camera and began recording.

A doctor from the Marine Mammal Conservancy immediately confiscated his camera, handing it to a woman on shore who deleted his footage.

The woman then berated him from having using the camera, informing him that “electronic pulses” from the camera endanger the whales.

Welch, who unsuccessfully tried to recover the deleted footage, was upset because at no point during the orientation did they tell him he was not allowed to use his camera.

It is also not mentioned on its website, even though they make other specifications regarding volunteering.

Welch ended up emailing a complaint to the director of the conservancy, who told Welch that he was, in fact, violating the Marine Mammal Protection Act, which is a felony.

The Marine Mammal Protection Act is bogged down in legalese but it appears that there is some type of permit process for the photography of wild sea mammals.

According to Section 104 (6):

 (6) A permit may be issued for photography for educational or commercial purposes involving marine mammals in the wild only to an applicant which submits with its permit application information indicating that the taking will be limited to Level B harassment, and the manner in which the products of such activities will be made available to the public.

Level B Harassment is described as:

 (ii) any act that disturbs or is likely to disturb a marine mammal or marine mammal stock in the wild by causing disruption of natural behavioral patterns, including, but not limited to, migration, surfacing, nursing, breeding, feeding, or sheltering, to a point where such behavioral patterns are abandoned or significantly altered.

I’m really not clear on whether the photographing of these animals is legal or not, but Marine Mammal Conservancy’s website includes photos, which indicates that they were issued a permit.

And I would imagine that permit would cover their volunteers.

Regardless if it is illegal to videotape a whale without a permit, it is clearly a crime to snatch someone’s camera and delete their footage without their consent.

I’ve included a copy of the email Welch wrote to the director as well as his response.

I’m sorry that this email couldn’t have been under better terms, but I feel the need to relay to you the events that unfolded last Saturday, May 14, 2011.

I arrived at 3:45AM for the 4AM-8AM volunteer shift. I went through the brief orientation, and then got suited up. I waited on the beach area while the first shift took their positions. I finally got into the water around 6AM, on whale 300. My girlfriend had been in the water since 5AM on one of the calves.

Around 6:45, when the light started coming out, I took out my waterproof video camera and I took about 15 seconds of footage of myself and my girlfriend in the water holding the whales. The couple next to me offered to take some footage of me holding the whale, and while doing so, Dana (I believe that was his name, one of the doctors) got upset and requested my camera. I told him I would turn it off and put it away, and he told me, “No.” He wanted my camera.

Being that I was still holding the whale, I had no choice but to let him take my camera, or drop the whale. About 5 minutes later, my girlfriend was relieved from her position, and I told her to get my camera whom Dana had given to the lady recording the data (I don’t know her name). At first she refused to give the camera, but then she told my girlfriend that she could have the camera back but that I had to speak with her when I got out of the water.

About 5 minutes later, I was relieved from my position, and upon exiting the water, she told me to come talk to her. She asked me if Dana explained the severity of my actions. I said he had not. She explained to me that (1) I was in the water to hold the whale, not take pictures and that if I was taking pictures, I was not holding the whale. I find this to be a little presumptuous as often during holding the whale I was required to cup water onto the top of the whale, using only one hand to hold the whale, the same way I used one hand to hold my pocket camera. Then she said that the “electronic pulses” from the camera probably causes massive damage to the whales and that I put their health at serious risk.

Again I find this hard to believe with everyone using cell phones, and the whales getting tracking tags on them, not to mention the various pictures of the whales that are posted on the web site. I did not argue, but simply stated that I wasn’t trying to break any rules, but no one had stated that photography wasn’t allowed.

After showering and dressing, I looked at my camera and noticed that my footage had been deleted. I was extremely upset at this. As I explained to the woman, at no time during or after the orientation did they stress that photography was not allowed. I even shut the camera off when Dana got upset.

Even if photography wasn’t allowed, I turned my camera off when asked. The staff had no right to (1) confiscate my camera and (2) invade my privacy and go into my videos (3) and delete anything on my camera. This is against the law and constitutes violations of my 4th Amendment rights (illegal seizures) and theft (deleting of private property). I did not lodge a formal complaint with the police, but I am doing so now with you, the director of operations.

The attitude of some of the staff there is completely disgraceful. The way the talked to us and others was very demeaning. My girlfriend witness Dana telling an older gentleman, “You see, YOU’RE THE PROBLEM” when the gentleman was stating he was having a little bit of a problem keeping the whale from moving. We are volunteers. We’re giving up our own time and resources to help a good cause. But the attitude and harassment of some of your staff left us with a bitter taste. The couple that I was holding the whale with had some family members on the beach taking photos of them in the water. They were told to leave as well and not take pictures. While we are here trying to help these whales, some of us would like to document our experience. And like stated before, never was I informed that photography was not allowed.

I realize that some of the staff may have been out for several shifts, and were probably tired, and cold, and hungry, but I suggest you talk with your staff about the rights that people have, and that they should not be violated. We should treat each other with a mutual respect and not deprive others of our basic civil liberties.

Sincerely,

Hans Welch

Here is the response from the director:

Dear Mr. Welsh,

My staff is tired as they work very long hours here but that is no excuse. I do have to say that cameras around the whales are strictly prohibited, it is part of the briefing, it is on signs leading to the area where the whales are at and it is told to everyone beforehand when they schedule a shift that no cameras are allowed past the fence/tape barriers.

By sneaking your camera into the water you not only placed yourself in danger but the volunteers and staff in the water with you. When pictures are taken (and they are taken by personnel with a lot of training and expertise) a staff member is on each animal to insure not only the volunteers safety but those of the photographers as well.

Pilot whales are known to spook easily and they are sensitive to sounds far beyond human hearing. If I had seen you with the camera, you would have been removed from the site period.

We appreciate our volunteers and we know you want pictures of your experience. You are welcome to take pictures from beyond the barriers only and you are also welcome to download for free those professional photographs on our website and Facebook page.

Knowing Dana and the years of training and experience he has as a volunteer supervisor with me, I doubt very seriously that he stated what you said in those terms, but I will address this with him when he returns.

If you cannot follow the rules here, please do not volunteer again, this is not a swim program nor a petting pool, volunteers are here to help us do some serious work with some seriously compromised wild and dangerous marine mammals.

Additionally, by taking your camera in the water you are in violation of the Marine Mammal Protection Act and can be charged with a felony. I would prefer to leave things stand where they are, so should you.

Robert G Lingenfelser Jr

Hans Welch responded to a call for volunteers from the Marine Mammal Conservancy where they needed help with pilot whales that had been stranded off the Florida Keys.

At one point last Saturday morning, the Miami resident was in the water holding the pectoral fin of a stranded whale.

It was obviously a very unique experience, so he pulled out his waterproof camera and began recording.

A doctor from the Marine Mammal Conservancy immediately confiscated his camera, handing it to a woman on shore who deleted his footage.

The woman then berated him from having using the camera, informing him that “electronic pulses” from the camera endanger the whales.

Welch, who unsuccessfully tried to recover the deleted footage, was upset because at no point during the orientation did they tell him he was not allowed to use his camera.

It is also not mentioned on its website, even though they make other specifications regarding volunteering.

Welch ended up emailing a complaint to the director of the conservancy, who told Welch that he was, in fact, violating the Marine Mammal Protection Act, which is a felony.

The Marine Mammal Protection Act is bogged down in legalese but it appears that there is some type of permit process for the photography of wild sea mammals.

According to Section 104 (6):

 (6) A permit may be issued for photography for educational or commercial purposes involving marine mammals in the wild only to an applicant which submits with its permit application information indicating that the taking will be limited to Level B harassment, and the manner in which the products of such activities will be made available to the public.

Level B Harassment is described as:

 (ii) any act that disturbs or is likely to disturb a marine mammal or marine mammal stock in the wild by causing disruption of natural behavioral patterns, including, but not limited to, migration, surfacing, nursing, breeding, feeding, or sheltering, to a point where such behavioral patterns are abandoned or significantly altered.

I’m really not clear on whether the photographing of these animals is legal or not, but Marine Mammal Conservancy’s website includes photos, which indicates that they were issued a permit.

And I would imagine that permit would cover their volunteers.

Regardless if it is illegal to videotape a whale without a permit, it is clearly a crime to snatch someone’s camera and delete their footage without their consent.

I’ve included a copy of the email Welch wrote to the director as well as his response.

I’m sorry that this email couldn’t have been under better terms, but I feel the need to relay to you the events that unfolded last Saturday, May 14, 2011.

I arrived at 3:45AM for the 4AM-8AM volunteer shift. I went through the brief orientation, and then got suited up. I waited on the beach area while the first shift took their positions. I finally got into the water around 6AM, on whale 300. My girlfriend had been in the water since 5AM on one of the calves.

Around 6:45, when the light started coming out, I took out my waterproof video camera and I took about 15 seconds of footage of myself and my girlfriend in the water holding the whales. The couple next to me offered to take some footage of me holding the whale, and while doing so, Dana (I believe that was his name, one of the doctors) got upset and requested my camera. I told him I would turn it off and put it away, and he told me, “No.” He wanted my camera.

Being that I was still holding the whale, I had no choice but to let him take my camera, or drop the whale. About 5 minutes later, my girlfriend was relieved from her position, and I told her to get my camera whom Dana had given to the lady recording the data (I don’t know her name). At first she refused to give the camera, but then she told my girlfriend that she could have the camera back but that I had to speak with her when I got out of the water.

About 5 minutes later, I was relieved from my position, and upon exiting the water, she told me to come talk to her. She asked me if Dana explained the severity of my actions. I said he had not. She explained to me that (1) I was in the water to hold the whale, not take pictures and that if I was taking pictures, I was not holding the whale. I find this to be a little presumptuous as often during holding the whale I was required to cup water onto the top of the whale, using only one hand to hold the whale, the same way I used one hand to hold my pocket camera. Then she said that the “electronic pulses” from the camera probably causes massive damage to the whales and that I put their health at serious risk.

Again I find this hard to believe with everyone using cell phones, and the whales getting tracking tags on them, not to mention the various pictures of the whales that are posted on the web site. I did not argue, but simply stated that I wasn’t trying to break any rules, but no one had stated that photography wasn’t allowed.

After showering and dressing, I looked at my camera and noticed that my footage had been deleted. I was extremely upset at this. As I explained to the woman, at no time during or after the orientation did they stress that photography was not allowed. I even shut the camera off when Dana got upset.

Even if photography wasn’t allowed, I turned my camera off when asked. The staff had no right to (1) confiscate my camera and (2) invade my privacy and go into my videos (3) and delete anything on my camera. This is against the law and constitutes violations of my 4th Amendment rights (illegal seizures) and theft (deleting of private property). I did not lodge a formal complaint with the police, but I am doing so now with you, the director of operations.

The attitude of some of the staff there is completely disgraceful. The way the talked to us and others was very demeaning. My girlfriend witness Dana telling an older gentleman, “You see, YOU’RE THE PROBLEM” when the gentleman was stating he was having a little bit of a problem keeping the whale from moving. We are volunteers. We’re giving up our own time and resources to help a good cause. But the attitude and harassment of some of your staff left us with a bitter taste. The couple that I was holding the whale with had some family members on the beach taking photos of them in the water. They were told to leave as well and not take pictures. While we are here trying to help these whales, some of us would like to document our experience. And like stated before, never was I informed that photography was not allowed.

I realize that some of the staff may have been out for several shifts, and were probably tired, and cold, and hungry, but I suggest you talk with your staff about the rights that people have, and that they should not be violated. We should treat each other with a mutual respect and not deprive others of our basic civil liberties.

Sincerely,

Hans Welch

Here is the response from the director:

Dear Mr. Welsh,

My staff is tired as they work very long hours here but that is no excuse. I do have to say that cameras around the whales are strictly prohibited, it is part of the briefing, it is on signs leading to the area where the whales are at and it is told to everyone beforehand when they schedule a shift that no cameras are allowed past the fence/tape barriers.

By sneaking your camera into the water you not only placed yourself in danger but the volunteers and staff in the water with you. When pictures are taken (and they are taken by personnel with a lot of training and expertise) a staff member is on each animal to insure not only the volunteers safety but those of the photographers as well.

Pilot whales are known to spook easily and they are sensitive to sounds far beyond human hearing. If I had seen you with the camera, you would have been removed from the site period.

We appreciate our volunteers and we know you want pictures of your experience. You are welcome to take pictures from beyond the barriers only and you are also welcome to download for free those professional photographs on our website and Facebook page.

Knowing Dana and the years of training and experience he has as a volunteer supervisor with me, I doubt very seriously that he stated what you said in those terms, but I will address this with him when he returns.

If you cannot follow the rules here, please do not volunteer again, this is not a swim program nor a petting pool, volunteers are here to help us do some serious work with some seriously compromised wild and dangerous marine mammals.

Additionally, by taking your camera in the water you are in violation of the Marine Mammal Protection Act and can be charged with a felony. I would prefer to leave things stand where they are, so should you.

Robert G Lingenfelser Jr

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