We expect, as a commonwealth, that when lawmakers propose to make activity criminal, that they choose their words carefully. We also expect that government will take action to assure that our food supply is safe, and that workers in the workplace will not be exposed to hazards due to employer negligence.
Yet pending before the House of Representatives is a bill that does not tread carefully in protecting these interests, and which could criminalize a worker or state inspector photographing unsafe working conditions or unsanitary food production conditions and could criminalize a neighbor standing on their own property, filming an industrial hog operation next door engaged in pollution or animal cruelty.
In 2018, the General Assembly created a separate criminal offense for trespass involving a “key infrastructure asset,” which made unlawful entry or occupation on the property of a list of infrastructure assets such as refineries, pipelines, water plants, electrical facilities, and the like, a criminal trespass. Also made criminal were drone overflights of key infrastructure properties with the intent to surveil without consent and with intent to do harm or damage.
Senate Bill 16, pending before the House for a floor vote since March 7, would unreasonably expand the criminal activities where food production plants and animal feeding operations are involved, and create a separate and overbroad set of rules for those two types of facilities.
Using imprecise new language limited to those two types of facilities, the bill would criminalize the taking of photographs or video and audio recordings, by a government inspector or a worker lawfully on the premises of a food manufacturing plant or in a confined animal feeding barn, unless the owner specifically authorized that photography or filming. The law could create a new defense for a negligent manufacturer that the evidence collected by a worker or inspector documenting unsafe or unhealthy workplace conditions was unlawfully collected and could not be used.
So too, whether intentional or not, the overbreadth of the new language would make it a crime for a neighbor, standing on their own property, to make an audio, video or photographic recording of an air, water or waste violation occurring at a food manufacturing or packaging plant, or of a confined animal feeding operation located next door.
Though explained in committee hearings as being intended to prevent drone overflights, the bill does much more, greatly expanding criminal liability by covering actions both in the air and on the ground, both on and off the property.
By including actions “on or above” rather than limiting the changes in the law to unmanned aerial overflights without permission, the changes unintentionally make criminals out of workers, inspectors and neighbors who take photos, videos or audio recordings.
The taking of a photograph by a worker in a food manufacturing plant of a safety violation; the taking of a photograph by a state or local food, safety, or environmental inspector during a routine or emergency inspection of a food plant or an animal feedlot operation; and the taking of a photograph or air or water sample by a neighbor on his or her own property, of a suspected odor or nuisance violation from an intensive hog farm or food manufacturing plant, would all be subject to criminal prosecution.
And although it was not the intent of the bill as explained by the sponsor in committee, because the new language would cover all properties where any number of horses, ducks, chickens or hogs are housed, stabled, or confined and fed for 45 days or more in any 12-month period, the taking of photographs or videos by persons lawfully visiting agritourism venues and racetracks would be criminal, unless the owner specifically consented to those actions.
The imprecise language and likely unconstitutional overreach of the bill could be corrected by adopting two House floor amendments that have been filed. They would limit the new language to unauthorized trespass onto and unauthorized drone overflights above the properties and would specifically protect the rights of workers to document noncompliance of a federal, state, or local law or regulation and to be protected against retaliation or discrimination. Food safety, workplace safety, and safeguarding the rights of neighbors who live downhill, downwin, and downstream, demand no less.
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Written by Tom Fitzgerald, who is former director and currently of counsel to the Kentucky Resources Council, a non-profit Kentucky organization providing legal and technical assistance without charge on a range of environmental and energy issues affecting Kentuckians. Cross-posted from the Kentucky Lantern.
