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So-called “Ag-Gag” laws refer to the various forms of legislation passed or proposed in some states (rejected in others), which essentially make it a crime to photograph or videotape any activity on a farm or agricultural operation without the owner’s consent. The laws generally apply regardless of what misconduct may be occurring, whether it be mistreating animals, endangering our food supply, or despoiling the environment. It’s all off-limits under these anti-whistleblower laws designed to ensure that what happens at the factory farm, stays within the factory farm.
Proponents of the Ag-Gag legislation claim these laws protect farmers from activists and eco-terrorists. They also claim videos can be misleading and taken out of context, making commonly accepted farming practices appear gruesome and offensive. None of this really stands up against the many factory farm abuses that have been, and will continue to be (if permitted), caught on tape. If abusing animals and endangering our food supply really are “commonly accepted” in the industry, or even approaching the norm, all the more reason to quash these laws and bring these activists formally within the protections of the federal whistleblower fold.
The ultimate problem with these Ag-Gag laws is that they are grounded in the unsupportable notion that transparency is a bad thing. To be sure, we do not want to permit or encourage criminal trespass, defamation, invasions of privacy, or fraud and deceit of any kind. But that’s not what Ag-Gag laws go after. There are other laws that guard against and punish this kind of mischief. Instead, Ag-Gag laws target whistleblowers plain and simple. They are singularly designed to silence this suspect class and maintain a dark shroud over an industry that is central to our health and wellbeing and ripe for exploitation and abuse. After all, we cannot rely on the animals to tell us when farmers behave badly. And until we can talk to the animals, a furtive photo or video is the best we can do to keep a check on the shadowy practices that so often infect agri-business today.
In July, 2016, we prepared the following state-by-state survey of where these laws had at that time been proposed, accepted, and rejected.
S. 162 was introduced in 2013.
If enacted, the bill would have prohibited “agricultural facility fraud,” defined as knowingly obtaining access to an agricultural facility by false pretenses, or making a knowingly false statement or representation as part of an application to be employed at an agricultural facility, with the intent to commit an act the person knows is not authorized by the facilities owner.
S. 162 was not enacted.
H.B. 683 was introduced in 2013.
If enacted, the bill would have criminalized “interference with agricultural operations,” defined in part as: (1)recording images or sound at an agricultural operation without the owner’s consent; (2) using the internet to upload, download, transfer or send image or sound recordings made at agricultural operations; (3) obtaining access to an agricultural operation under false pretenses; and (4) applying for employment at an agricultural operation with the intent to create an image or sound recording at that operation, knowing at the time of application that making such recordings was prohibited.
H.B. 683 was not enacted.
S. 5172 was introduced in 2011.
If enacted, the bill would have created the crime of “unlawful tampering with a farm animal,” defined in part as “interference with a . . . farm through . . . unauthorized video, audio recording, or photography done without he farm owner’s written consent.”
S. 5172 lapsed in the Agricultural Committee in 2012.
S.B. 221 was introduced in 2015.
If enacted, the bill would have required the rapid reporting—within 24 hours— to law enforcement of any digital or video recording depicting injury to livestock
Approved by conservation Committee, February 24, 2015; Referred to Judiciary Committee; Action Postponed Indefinitely.
S.B. 221 lapsed in the Judiciary Committee at the end of the legislative session.
S.B. 552 was introduced in 2013.
If enacted, the bill would have criminalized (1) knowingly or intentionally making image or sound recordings at a livestock operation without the owner’s consent; (2) obtaining access to a livestock operation under false pretenses; (3)applying for employment at a livestock operation with the intent to create audio or visual recordings at that operation without the owner’s consent.
S.B. 552 was not enacted.
H.B. 110 was introduced in 2013.
If enacted, the bill would have required any person who recorded any activity constituting cruelty to livestock to report the cruelty and submit any photographs or video recordings to law enforcement within 24 hours of the recording’s creation.
H.B. 110 was rejected in September 2014.
L.B. 915 was introduced in January 2012.
If enacted, this bill would have created the offense of “obtaining employment at an animal facility with intent to disrupt operations,” which was not further defined. The bill would also have required reporting of cruelty to livestock within 12 hours to “the entity or entities that investigate such reports,” along with all original photo, audio, and/or video evidence and any copies.
The bill was indefinitely postponed in April 2012.
H.F. 1369 / S.F. 1118 was introduced in 2011.
If enacted, the bill would have criminalized “animal facility interference,” defined as willful: (1) production of an image or sound recording at an animal facility; (2)possession or distribution of such image or sound records; or (3) entry or refusal to exit an animal facility that is not open to the public after receiving notice the facility is nonpublic.
The bills were not enacted.
S.B. 373 was introduced in 2013.
If enacted the bill would have criminalized knowingly or intentionally entering agricultural or industrial operations and creating photos or videos of the property, structures, or operations being conducted without the written consent of the owner.
S.B. 373 was not enacted.
H.B. 5143 was introduced in 2012.
If enacted, the bill would have criminalized the creation or possession of a visual or sound recording made at an animal facility without the owner’s consent.
H.B. 5143 was tabled in March 2012.
S.B. 1532 was introduced in 2013.
If enacted, the bill would have provided that if any law enforcement officer, animal control officer, the Department, or an approved humane investigator determined that a complaint made against a person or entity was knowingly false, not made in good faith, and made with the intent to harass the person or entity, the Department may waive any confidentiality of the complainant and may refer the matter to the State’s Attorney for consideration of criminal charges against the complainant.
S. B. 1532 was not enacted.
H.B. 222 was introduced in January 2014.
If enacted, the bill would have made it a class B misdemeanor to (1) obtain access to an agricultural operation through misrepresentation or fraud by applying for employment while knowing that the operation prohibits video, and while employed, to record images or sounds at that operation; or (2) to knowingly or intentionally record image or sounds at an agricultural operation while under the guise or pretense of being a customer, patron or consumer.
H.B. 222 was not enacted.
S.B. 1246 was introduced in 2011.
If enacted, the bill would have made it a first degree misdemeanor to enter a farm operation and produce photographic, audio, or video records of that operation without the written consent of the owner or his/her authorized representative
S.B. 1246 was not enacted.
S.B. 15-042 was introduced in January 2015.
If enacted, the bill would have made it a class 3 misdemeanor to fail to report incidents of “abandonment, mistreatment, or neglect of an animal . . . within 48 hours after witnessing or obtaining knowledge of each incident.”
S.B.15-042 lapsed at the end of the legislative session.
A.B. 343 was introduced in 2013.
If enacted, the bill would have required anyone, other than a journalist, who knowingly documented evidence of farm animal cruelty by film, photograph, images, print, recordings, or videotapes to provide a copy of such documentation to local law enforcement or an animal control officer within 120 hours of its creation.
A.B. 343 was not enacted.
H.B. 1665 was introduced in February 2017.
This law makes it illegal to, among other things, prohibits individuals, including employees, from knowingly gaining access to nonpublic areas of agricultural production operations and other commercial properties, and (1) capturing or removing data, paper, records, or other documents and using such data, paper, records, or documents to damage the employer; (2) recording images or sound and using a recording to damage the employer; (3) placing an unattended camera or electronic surveillance device on the property to record images or data for an unlawful purpose.
The law provides owners of agricultural production operations and other commercial properties a civil cause of action through which they may sue whistleblowers for thousands of dollars in damages.
Arkansas Governor Asa Hutchinson signed the law on March 23, 2017.
H.B. 2429 was introduced in January 2015.
If enacted, the bill would have required the Department of Agriculture to be notified “of any investigation” of alleged animal cruelty, and would have granted the Department the right to participate in the investigation.
H.B. 2429 lapsed at the end of the legislative session.
SB 6551 was introduced in January 2016.
If enacted, the bill would prohibit the Department of Ecology from investigating a “suspected discharge from agricultural activity” based on information from an anonymous third party. Additionally, if the Department of Ecology issues a notice of violation related to “discharges from agricultural activity” based on information provided by a third party, the Department must reveal the name of the third party to the person receiving the notice of violation.
HB 1104 was introduced in January 2015.
If enacted, the bill would criminalize “interference with agricultural production.”
“Interference with agricultural production” would include: (1) a non-employee entering an agricultural facility by misrepresentation; (2) obtaining records of an agricultural facility by misrepresentation or trespass; (3) obtaining employment with an agricultural facility by misrepresentation with the intent to cause economic or physical injury to the facility’s operations, property, or goodwill, including business interests or customers; (4) entering a non-public agricultural facility, and without authorization, recording the facility’s operations; or (5) intentionally causing economic or physical injury to the agricultural facility’s operations, property, personnel, or goodwill, including business interests or customers.
“Interference” would be punishable as a gross misdemeanor by up to 364 days in jail and a $5,000 fine. Additionally, if the person caused economic or physical injury as a result of the “interference,” the court would be empowered to impose a fine of up to double the amount of the victim’s losses.
S.B. 1248 / H.B. 1191 was introduced in 2013.
If enacted, the bill would have amended TCA Titles 39 and 44 to require any person who recorded cruelty to livestock to submit any unedited photographs or video recordings to law enforcement authorities within 24 hours of the photograph’s or recording’s creation.
The bills were vetoed by Tennessee’s Governor in May 2013.
H.B. 1838/S.B. 1691 was introduced in January 2016.
If enacted, the bill would have created a private right of action against “[a]ny person who intentionally access a nonpublic area of another’s premises and engages in an act that exceeds that person’s authority to enter those areas.”
The law would have made it illegal for an employee to: (1) enter the nonpublic area of an employer’s premises for a reason other than a bona fide intent of seeking or holding employment, and thereafter, capturing or removing data or documents, or recording images or sound; or (2) place an unattended surveillance device on the employer’s premises and use the camera to record images or data. “Nonpublic areas” were defined as those not accessible to the general public.
H.B. 1838/S.B. 1691 were not enacted.
Criminalizes “trespassing to unlawfully collect resource data” and “unlawful collection of resource data.”
This law makes it illegal for a person to “trespass to unlawfully collect resource data.” The crime of trespassing to unlawfully collect resource data includes: (1) entering onto another’s private open land without authorization; with (2) the purpose of collecting resource data. “Resource data” is data relating to land or land use, including but not limited to data regarding agriculture, minerals, geology, history, cultural artifacts, archeology, air, water, soil, conservation, habitat, vegetation, or animal species.”
This law also makes it illegal to “unlawfully collect” such “resource data.” A person “unlawfully collects resource data” when he/she enters onto private open land and collects resource data without an ownership interest in the land or authorization to enter the land. Resource data collected in violation of this law must be expunged from the records of any government entity in possession of it, may not be considered in determining any government agency action, and is inadmissible in any civil, criminal, or administrative proceeding, except in a prosecution for violation of this law. Violations are punishable by imprisonment for up to one year, and/or a fine of up to $1,000($5,000 for repeat offenders).
This law went into effect on March 5, 2015. In December 2015, a federal judge permitted a lawsuit challenging the law’s constitutionality to proceed.
Criminalizes “interference” with an agricultural operation.
This law makes it illegal to: (1) without consent, knowingly or intentionally record images or sounds from an agricultural operation by leaving a recording device on the premises; (2) obtain access to an agricultural operation under false pretenses; (3) apply for employment at an agricultural operation with the intent to record at the facility, with knowledge at the time of accepting employment that the owner prohibits the employee from recording at the facility, and while employed or present at the facility, recording images or sound at the operation; or (4) without consent, knowingly or intentionally recording images or sound from an agricultural facility while committing criminal trespass. Violation of this law may result in Class A or B misdemeanor charges.
This law was signed by Utah’s Governor on March 20, 2012, and became effective on May 8, 2012. On July 22, 2013, the Animal Legal Defense Fund and People for the Ethical Treatment of Animals (PETA) filed suit in the U.S. District Court for the District of Utah, alleging the law infringes on free speech and violates equal protection. In July 2017, Judge Robert J. Shelby ruled that Utah’s law was unconstitutional and in violation of the First Amendment. The state of Utah waived its right to appeal Judge Shelby’s decision.
Criminalizes use of video or audio recording equipment in an animal facility without the owner’s consent.
This law makes it illegal to “enter an animal facility and use or attempt to use a camera, video recorder, or any other video or audio recording equipment.” Violation of this subsection of the law is a class B misdemeanor. Additionally, a person damaged by violation of this law may bring an action in court against the violator to recover an amount equal to three times all actual and consequential damages as well as attorneys’ fees.
This law was signed on April 8, 1991.
S.B. 648 was introduced in 2013.
If enacted, the bill would have criminalized “employment fraud,” defined in part as willfully misrepresenting or failing to disclose that the purpose of gaining access to an employer’s facilities included an intent to create or produce image or sound recordings from within the facilities. The bill would also have required that any recordings made be submitted to local law enforcement within 24 hours of their creation.
S.B. 648 was not enacted.
S.B. 285 was introduced in February 2015.
If enacted, the bill would have transformed “a person who knowingly fails to report evidence of cruelty to animals at an animal facility within 24 hours” into a person who “commits the offense of cruelty to animals.” The bill would also have criminalized entering an animal facility without consent and with intent to commit an “unlawful act,” including the creation of audio or visual records made with the intent to commit criminal defamation.
Violators of the statue would have faced the possibility of fines up to $1,000 or imprisonment of up to one year for a first offense.
S.B. 285 was tabled in the Agriculture Committee on March 26, 2015.
Criminalizes trespassing on an animal facility to take pictures or video.
This law makes it a crime to enter a non-public animal facility, without the effective consent of the owner, and, with the intent to damage the enterprise conducted at the animal facility, to take pictures by photograph, video camera, or any other means. Violation of the law can result in misdemeanor charges.
This law was enacted in 1990.
Criminalizes failure to submit recordings of animal abuse to law enforcement within 24 hours.
This law makes it illegal for any “farm animal professional” who makes a digital recording of what he/she believes to be farm animal abuse or neglect, to fail to provide that recording to law enforcement within 24 hours of the recording. Violation of this law may result in misdemeanor charges.
This law was signed by Missouri’s Governor on July 9, 2012, and became effective on August 28, 2012.
Criminalizes “prohibited acts” against animal research and production facilities.
This law makes it illegal to, among other things, obtain access to an animal facility by false pretenses for the purpose of performing acts not authorized by the facility. Violators of this law may be ordered to pay restitution of reasonable costs to the owner or operator of the animal facility, as well as punitive damages, court costs, and attorneys’ fees.
The law was first enacted in 1992.
Criminalizes “agricultural production facility fraud.”
This law makes it a crime to commit “agricultural production facility fraud.” The crime of “agricultural production facility fraud” includes: (1) obtaining access to an agricultural facility by false pretenses; and (2) making a false statement as part of an employment application or agreement, if the statement is made with the intent to commit an act not authorized by the owner of the agricultural production facility. Violations of the law can result in serious or aggravated misdemeanor charges.
This law was signed on March 2, 2012 and went into effect on July 1, 2012.
Criminalizes “interfering” with an agricultural production facility.
This law makes it a crime to “interfere” with an “agricultural production facility.” The crime of “interference” includes: (1) entering an agricultural production facility by misrepresentation or trespass; (2) obtaining records under false pretense; and/or (3) seeking employment with the intent to cause economic injury to the facility’s operations. “Interference” is punishable by up to a year in prison and/or a fine up to $5,000.
This law went into effect on Feb. 28, 2014. The Animal Legal Defense Fund and others filed a lawsuit on March 17, 2014 alleging the law violates the First Amendment. On August 3, 2015, Judge B. Lynn Winmill, U.S. District Court for the District of Idaho, ruled that Idaho’s law was unconstitutional and in violation of the First Amendment. Judge Winmill’s decision is currently on appeal before the 9th Circuit.