Photo-Developing Labs' Tips to Police Spark Controversy Over Dubious Photos

By ANN ZIMMERMAN
Staff Reporter of T HE WALL STREET J OURNAL

When a young worker at a San Jose, Calif., pharmacy developed some photographs of a man surrounded by sawed-off shotguns, ammunition and pipe bombs in late January, she called 911.

The call led to the arrest of a college student on 122 weapons charges, and law-enforcement officers credited the Longs Pharmacy photo clerk with preventing a possible Columbine-like massacre at nearby De Anza Community College.

Shirley Gasper had a different experience. After coming across a picture of a baby lying on a heap of marijuana leaves, she called police, too. Her employer, a Wal-Mart store in Fremont, Neb., where she worked as a photo processor, fired her.

As photo-developing kiosks proliferate in drugstores, groceries and discount outlets, more and more lab clerks are finding themselves in an unusual and complicated role. They are privy to photographs that may reveal terrible secrets. Yet sometimes store policies force employees to choose between their obligations to their companies and their moral, and even legal, duty to society.

Relying on these hourly workers, who are often young and making little more than minimum wage, the industry seems ill-equipped to fulfill the role of police adjunct. Companies have differing policies and philosophies governing what images are unacceptable and just how involved they should be in policing them. "We have to balance our obligation to respect the privacy of our customers with our obligation to help the community to stop criminal activity," says Bill Wertz, spokesman for Wal-Mart Stores Inc., which, with about 2,000 photo centers nationwide, processes more film than any other retailer.

After all, if employees falsely accuse someone, the stores could be held legally liable. "We don't want our employees going off like some unguided missile," says James Sinegal, chief executive of Costco Wholesale Corp., which has a policy that questionable photographs must be brought to the attention of management. "It's a very tough issue."

Color and Tint

The issue has gotten tougher in the past decade. For years, most photos were sent out for processing to centralized labs, where technicians splice together numerous rolls that are developed at one time. In those centers, technicians may look at only a fraction of the pictures per roll when checking quality issues, such as color and tint. As a result, the issue of what was in the picture came up less frequently.

As technology made photo finishing easier and quicker, however, the number of minilabs doubled in the last 10 years to 32,600 outlets processing 19.4 billion photographs a year. One-hour labs -- which develop each roll individually, giving technicians the opportunity to inspect each photo -- now process an estimated 40% of all photos, up from about 32% a decade ago. The total number of photos developed has risen despite the growing use of digital cameras, which don't require outside processing.

The one-hour industry has rapidly proliferated at the same time that society has become more sensitive to pornography, violence and child abuse, and police have looked to workers for leads. The Dallas Police Department, for instance, notified photo processors several years ago that they had a legal obligation to report evidence of child abuse. The department has since had a stream of reports from minilabs and large photo-processing centers.

'Significant Cases'

"We've made some significant cases off these reports," says Lt. Bill Walsh.

The law provides guidance in some areas but not in others. A 1990 federal law requires certain professionals such as commercial film processors who have evidence of suspected child abuse, including sexual exploitation, to report it. Every state has similar statutes. Federal and state child-pornography laws also require processing professionals to report sexually explicit photos of minors. The same laws protect whistleblowers from legal liability so long as they act in good faith.

All the major photo processors say they are committed to reporting abuses against children. Photo Marketing Association International, a trade association, publishes guidelines for determining what might be considered objectionable, such as material that is "sexually suggestive" or "designed to elicit a sexual response in the viewer." But making such judgments is tricky: As photographers from Sally Mann to the late Robert Mapplethorpe discovered, determining when an innocent or artistic photo crosses the boundary to sexually explicit is a gray area.

In February 2000, Marian Rubin, a 65-year-old New Jersey grandmother, was arrested at her neighborhood MotoPhoto when she arrived to pick up a roll of film she had taken of her granddaughters, ages three and eight. A school social worker and semiprofessional photographer whose work had been published and exhibited locally, Ms. Rubin had kept her grandchildren overnight. As the girls frolicked naked after their bath, dancing, pirouetting and tumbling, she snapped seemingly innocent pictures.

But a clerk and a manager at the MotoPhoto outlet thought the pictures could be the work of someone who was exploiting the girls and called police. After being booked into the Montclair, N.J., jail, Ms. Rubin was charged with three counts of felony child endangerment for each child, for allegedly "causing them to pose nude for photos," "causing them to engage in nudity for the purpose of sexual stimulation," and "knowingly receiving nude pictures" of them. Police searched her home and confiscated her computer.

A state social worker and police officers were dispatched to her son's home at 10 p.m., where they awoke the eight-year-old to question her. Ms. Rubin's son, who asked that his name not be used to protect his children's identity, says the social worker concluded his daughter hadn't been sexually abused. He says he wasn't shown the photos, but that he told police he and his wife didn't have a problem with his mother's previous pictures of the kids.

But prosecutors pressed the case. Ms. Rubin was suspended with pay from her job in the Belleville, N.J., school district. Trying to defend herself, she ran up a $30,000 legal bill. But rather than face a trial where the children would have to testify, Ms. Rubin says she agreed to enter a pretrial intervention program, where she spent a year on probation, after which the charges were dismissed.

"I seriously thought about killing myself, not out of guilt, but to save my family the disgrace and money," said Ms. Rubin. "I don't blame the photo processor. It was probably a kid working part-time just doing his job. But how can a prosecutor decide from looking at pictures of smiling, happy kids clowning around in the nude that they are in danger and abused?"

Child Endangerment?

A spokeswoman for MotoPhoto Inc. of Dayton, Ohio, declined to comment because the outlet involved is a franchise, and company policy calls for the owner to decide whether to call police. The franchise owner didn't return calls seeking comment. Robert Laurino, deputy chief assistant prosecutor for Essex County, N.J., says Ms. Rubin's photos of her grandchildren "posing naked on the bed" met the state statute for child endangerment.

As a matter of policy, Wal-Mart declines to print any photos of people in "a state of undress that wouldn't be acceptable in public in most areas of the country." Spokesman Ray Allen explains that the company doesn't want to put its photo-lab workers "in a position that might offend them." Workers who spot such images on negatives are instructed to return them undeveloped with a letter of explanation.

Another spokesman, Mr. Wertz, says the no-print policy doesn't apply to "innocent pictures of naked babies -- babies in bathtubs, children running through sprinklers, that sort of thing." He says it's a judgment call that depends on the subject's "age, posture and the context" of the picture. Workers are supposed to alert managers to "questionable" photos of minors. But problems arise if the employee and the manager have a difference of opinion.

Last summer, workers at a Florida Wal-Mart were troubled by a photo of a young teenage boy who was sitting on what appeared to be a toilet, his hands and legs bound by duct tape. Two managers instructed the workers to return the pictures to the customer. But the distraught workers made a copy and gave it to Ingeborg Coffman, a 60-year-old lab tech who had worked in the department the longest. One of the workers told police about the picture and Ms. Coffman later complied with an officer's request to see it.

Police investigators concluded that the picture, taken during a church-youth-group trip, was a prank. Although Lorrie Kjeer, the boy's mother, says she wasn't troubled by the disclosure, Wal-Mart was. Managers accused Ms. Coffman of stealing company property and asked her to sign a statement admitting it. When she refused, she says, they told her to hand over her badge and had a security guard walk her to her car.

Wal-Mart says Ms. Coffman left the store and never returned, and says it didn't fire her. In a suit now pending in federal court in Tampa, she charges under Florida's Whistleblower Act that the company retaliated against her for turning the photo over to police.

Privacy Issues

Wal-Mart says the rest of the roll of film makes clear that the boy wasn't in danger. "Why put a customer through an unnecessary invasion of privacy if it's clear?" says Mr. Allen.

Catherine Kyres, Ms. Coffman's attorney, disagrees. "That child was lucky, but there may be thousands of others who aren't," she says. The "policy should not override your own personal obligation to perform a public service."

The Photo Marketing Association's suggested guidelines for handling questionable photos state: "If an employee feels that state or other law requires that he or she file a report even if management does not, the employee should notify management of that belief, and arrangements for filing the report will be made. No employee will be disciplined for acting on a reasonable belief that the law requires such action."

PhotoWorks.com, a Seattle-based mail-order photo-finisher and online-photo archive, doesn't have a problem developing pictures depicting nudity, provided the pictures are innocent snapshots of infants and toddlers or appear to be between two consenting adults. But they are vigilant about pictures that exploit children, which they come across about once a month. Employees have been called to testify as witnesses in three child-pornography prosecutions in the past 14 years, says Scott Wilson, lab-operations manager.

Mr. Wilson asks his lab workers, who inspect every roll, to keep an eye out for "suspicious-looking stuff" and not necessarily just the obvious. One customer, for example, took telephoto pictures of teenage boys in shorts walking in front of a tennis center. "The pictures raised a flag," says Mr. Wilson, who alerted workers to check the man's future orders, which also focused on young boys. Mr. Wilson turned the photos over to a U.S. postal inspector but doesn't know if authorities followed up. "It was a gray area, but I'd rather take the cautious route," he says.

A Baby at Risk

Ms. Gasper, a 42-year-old mother of two, didn't think there was anything ambiguous about two photos of a baby amid marijuana leaves and $50 and $100 bills she came across two summers ago. She phoned her Wal-Mart supervisor, who was away. The supervisor told her there was nothing they could do. But Ms. Gasper, worried about the infant's safety, turned the pictures over to the police. "I thought time was of the essence and someone needed to know now that this baby might be in danger," she recalls.

When Ms. Gasper's manager returned and saw the photos, she changed her mind and agreed that the authorities should handle the matter. So Ms. Gasper was shocked to be called later to a meeting with Wal-Mart managers and a security guard. She was reprimanded for violating company policy by not first getting clearance. And when she said she would do the same thing again, given the same circumstances, she was fired.

Mr. Allen, the Wal-Mart spokesman, says the company took the action when it was clear the former employee wouldn't agree to follow policy.

Ms. Gasper, who now works cleaning houses, challenged her dismissal on the grounds that it violated the Nebraska Fair Employment Act, which bars companies from firing employees for opposing an illegal practice. In January, a federal jury in Omaha ruled that Wal-Mart was within its rights to terminate Ms. Gasper, even though Nebraska, like many states, requires a citizen to report suspected child abuse or neglect. The judge said Ms. Gasper had to prove that Wal-Mart had a "practice" of not reporting child abuse, according to court records. Ms. Gasper is appealing.

Nebraska law-enforcement officials are upset at the outcome. Although they never managed to track down the baby, because the man who dropped off the roll used a fake name, the pictures were valuable evidence of a crime in progress, says Doug Salmen, an investigator with the Washington County, Neb., Sheriff's Department. If Wal-Mart "cared about the community as much as they say they do," he adds, "they would give their clerks leeway to act quickly or change their policies."

Write to Ann Zimmerman at ann.zimmerman@wsj.com