Four years after a federal court found elements of a trespass law unconstitutional, a committee unanimously recommended the Legislature strike the illegitimate clauses from Wyoming statutes.
The Joint Judiciary Committee acted on the state’s controversial data-trespass law last week while advancing several other measures that expand the definition of trespass and seek to control the use of drones.
The so-called data-trespass law provided enhanced penalties against those who collect environmental data — including photographs — on public land after trespassing.
As the committee waded into its new trespass debates, co-chairman Sen. Tara Nethercott (R-Cheyenne) warned that Wyoming taxpayers bore the cost of the Legislature’s unconstitutional measures, like the 2015 law. “The state of Wyoming paid over $600,000 in attorney fees to out-of-state lawyers for passing an unconstitutional law,” she said.
The committee then worked up several new draft bills and recommended the Legislature pass Trespass by small unmanned aircraft. That measure would criminalize as trespass the use of a drone flown in the “immediate reaches” of private property if that use interfered with the “use and enjoyment” of that land.
The committee also recommended the Legislature enact a new law making it illegal to “photograph, surveil, broadcast or otherwise record” a jail or prison while using a drone. First-Amendment advocates, including the Wyoming Press Association, the National Press Photographers Association and WyoFile, criticized the prison-drone bill and the drone trespass measure as constitutionally suspect or worse.
The committee decided to work further in November on a bill that would expand the definition of trespassing to hunt. Among other changes, that measure would would allow Wyoming Game and Fish Department law officers to cite those who, without permission, “pass through” private property to hunt or collect antlers beyond.
Support, obey and defend the Constitution
To resolve the existing unconstitutional data-trespass statute, the committee quickly advanced the Adjacent land resource data trespass-repeal bill with comments only from Nethercott.
Wyoming had fought for the unconstitutional data-trespass bill for years, starting in 2015 when it first enacted the measure during conflicts between the agricultural and ranching industries and public-land-grazing critics. Wyoming finally lost its campaign in 2018 when a judge ordered the state to pay more than $582,000 to lawyers from Public Justice, the National Resource Defense Council, the National Press Photographers Association and the University of Denver.
Nethercott said the fee total was “an important piece of information,” as the committee considered defining new trespass and photography crimes.
The court loss illustrates, she said, how important it is “for us to carefully craft legislation when there are concerns about it being unconstitutional.” Lawmakers must recognize that “there are real consequences … to the taxpayers of Wyoming, who of course paid for the Legislature’s passage of that unconstitutional law.”
After voting the data-trespass repeal on to the full Legislature as a committee-sponsored measure, the panel recommended lawmakers also pass both the drone-trespass bill and prison-drone measure.
The drone-trespass bill would create a misdemeanor trespass crime even in instances when the unmanned aircraft did not touch down or fly directly over somebody else’s private land. The penalty for conviction would be up to $750 in fines and six months in jail.
Conviction could result from a drone flying in the “immediate reaches” of private property if it interferes with “use and enjoyment” of that property. Those vague terms created worries, but did not stop the committee endorsing the bill.
“Immediate reaches” is a “potentially an ambiguous term,” David Hopkinson, a staff attorney with the Legislative Service Office, told the committee. The clause creates “vagueness as far as where that [distance] would actually fall.”
Committee member Rep. Karlee Provenza (D-Laramie) also questioned whether “use and enjoyment” was well-defined. In an 11-page letter, the NPPA, Wyoming Press Association and WyoFile asked that the bill not be considered.
No drone pix of prisons
The Joint Judiciary Committee also recommended the Legislature pass a law that prohibits photographing or recording a penal institution using a drone without prior permission. Such use would be a misdemeanor punishable by up to a year in prison and a fine up to $2,000.
The photography element is only part of Prohibiting drones over penal institutions. The legislation would also criminalize the delivery of deadly weapons and other contraband to inmates via unmanned aircraft.
The measure appears to put the administrator of a jail or prison in the editor’s chair, deciding what news event may or may not be photographed by drone from the outside.
“As long as you get permission first, it would not be a crime,” LSO attorney Hopkinson said.
There are no laws prohibiting the photographing of a jail or prison, Dan Shannon, director of the Department of Corrections, said in response to a question from Rep. Mike Yin (D-Jackson). Nethercott followed up.
“What if someone was photographing from a hill?” she asked Shannon.
“I would secure the yard and notify law enforcement,” he said.
“We’ve always been taught to develop a perimeter, you secure that perimeter,” Shannon told lawmakers. In the case of an approaching drone “we have no way of knowing what’s friend or foe.”
Rep. Art Washut (R-Casper) amplified worries about security. “Whether it be a drone or somebody on a hillside with a telephoto lens taking pictures of your yard, they’re very disruptive to your operations and you have to take immediate countermeasures,” he said.
The NPPA/media letter questioning the constitutionality of the bill called for the elimination of the photography ban. The prohibition “is expressly based on what is in the image [and thus] is a content-based restriction … on First Amendment protected activity, and such restrictions are presumptively invalid,” NPPA attorney Mickey Osterreicher wrote the lawmakers.
His reasoning didn’t sway Nethercott or a majority of the committee members.
“I don’t believe that the draft is unconstitutional,” she said. It’s possible a court could agree with the critics, Nethercott said, “but I don’t think that … the bill draft is unconstitutional on its face.”