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News & Insight

Why The Wyoming ‘Data Trespass Bill’ Should & Shouldn’t Bother You

By Kishore Sawh on May 23rd 2015

Disclaimer: I am not a lawyer. I don’t live in Wyoming. I have read the bill of Senate File No. SF0012 (Data Trespass Bill) five times. The extent of my legal knowledge is derived from A Few Good Men, and 12 Angry Men. This post is not meant as a legal guideline. These are the facts of the case, and they are undisputed.

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Wyoming’s new bill is causing concern all over the photo world. And all over the country in general at that. Essentially there’s a concern that the new bill is unconstitutional in its seeming effort to make certain data collection illegal – this data collection would include photographs. That’s right, the wording of the bill is as vague as interpretive dance – you sort of can make of it what you like. Well, that’s what the internet seems to suggest, though may not be the case.

The whole ordeal seems to have its origin around a group of ranchers who sued an environmental group for trespass when they were found on their land obtaining water samples from streams that were contaminated with E Coli from the ranchers’ cattle’s fecal matter. The samples of water were taken on public land, but the new Wyoming law seems to suggest that this would now be illegal without explicit written permission. How? In this case, because private land was crossed in order to get to the public land to get the water sample.

Without getting too bogged down in the legal jargon right now, what is being said in photo forums all over is that it’s now illegal to take photos (collecting data) on ‘open land’ without written permission. However, this idea seems to be founded almost entirely upon a certain interpretation of the bill. Granted, that the bill seems to be so vague as to be able to be interpreted in such a fashion is part of the problem.

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Another interpretation of the bill is that this would, in fact, only be illegal if the data collected was done with the intention of turning the data over to any federal or state agency which may possibly take action of any kind if the data suggested or revealed a problem of some sort. If you did this, you would be charged with ‘trespassing to unlawfully collect resource data,’ and ‘unlawful collection of resource data.’ So, for example, if you saw a water body was polluted and took a sample or even a picture of it and turned it into the state, it may be possible to prosecute you to the tune of jail time and a hefty fine.

The tricky word here is ‘trespassing,’ because trespass is associated with something criminal, but lawmakers are quick to point out that in this bill’s context, ‘trespassing’ is actually classified as different than ‘criminal trespass,’ where you knowingly go on private land. But with this law, you don’t even have to know you’re on private land to be prosecuted. In fact, it appears if you even crossed private land in part of your journey to ‘collect data’ that would also make your action punishable. So technically, even if the law was meant to penalize a certain few, it’s written in a way where it could apply to anyone. This is one of the ways it seems the bill is trying to dissuade anyone from even attempting anything related at all.

wyoming-law-bill-trespassing-data-photography-slrlounge-5Here’s what University Of Denver Law Professor Justin Pidot has to say of the matter,

The new law is of breathtaking scope. It makes it a crime to “collect resource data” from any “open land,” meaning any land outside of a city or town, whether it’s federal, state, or privately owned. The statute defines the word collect as any method to “preserve information in any form,” including taking a “photograph” so long as the person gathering that information intends to submit it to a federal or state agency. In other words, if you discover an environmental disaster in Wyoming, even one that poses an imminent threat to public health, you’re obliged, according to this law, to keep it to yourself.

Ironically, while you could be prosecuted for such an action, the law also makes whatever information you did collect inadmissible in court. So you could go to jail for taking a picture to prove a wrongdoing, and the very picture you took would be thrown out of a legal proceeding, even if you were willing to serve the sentence to shed light on some injustice that could be a major environmental disaster or hazard to public health. That’s rather scary, and this isn’t the first time or state that has implemented laws whose aim seems to be the silencing of any who challenge large agricultural ambitions.

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Just to clarify, however, that this does not appear to have any jurisdiction within the borders of a federal park such as Yellowstone, even though it seems everyone is jumping to use the park as a poster-child representing places you can’t take photos of. This was made quite clear by the park officials themselves. Regardless, simply enacting this law shows the Wyoming legislature carries disdain for the sanctity of the constitution and freedoms protected by the First Amendment. The hope is that the DOJ would express its disproval by filing a suit to invalidate the bill. One can hope.

In the meantime, I would love for everyone in, and traveling to the state, to just take hundreds of photos and post them collectively, namelessly, on some public site.

You can read the full bill here, and see the article by Slate that got the ball rolling.

About

A photographer and writer based in Miami, he can often be found at dog parks, and airports in London and Toronto. He is also a tremendous fan of flossing and the happiest guy around when the company’s good.

Q&A Discussions

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  1. William Emmett

    When talking environmental law, the Feds are the people to see. The Federal Statues trump the State Laws in every instance. Cases in point, the BP Oil spill in Louisiana. The new spill in California.

    WE

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  2. Rob Harris

    This is just Big Business attempting to legislate something that will intimidate the little man. It would be relatively easy to take a photo of something, remove the metadata, and send the photo anonymously to the Dept of Justice, FBI, or major news organizations. Just create a public email account using a false name, send it from some public location like a library under a pseudonym, and the information is out in the public without anyone knowing who you are. While not as easy as walking in and giving it to someone, it sure as heck can be done.

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    • Thomas Horton

      That might not work. The imagery itself could not be used as evidence.

      “(e) No resource data collected in violation of this section is admissible in evidence in any civil, criminal or administrative proceeding, other than a prosecution for violation of this section or a civil action against the violator. This subsection applies whether or not the violation of this section was prosecuted or resulted in a conviction.

      (f) Resource data collected in violation of this section in the possession of any governmental entity as defined by W.S. 1-39-103(a)(i) shall be expunged by the entity from all files and data bases, and it shall not be considered in determining any agency action.”

      To me, it is these two last paragraphs of this legislation that are of most concern. It appears that this legislation is really about suppressing evidence.

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  3. Graham Curran

    The nutters are trying to write the laws again.

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  4. William Emmett

    These types of laws are on the books in almost every State. They are usually struck down as soon as they are attempted to be enforced. It does take a large amount of cash get one of these struck down though. The American Civil Liberty Union will probably bite on this one.

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