Updated: Jul 17, 2020
By Ashley Ellixson
I know you must be thinking, what in the world is a data trespassing law? That is exactly where I intend to begin today’s blog post. On March 10 of this year, Wyoming passed its data trespassing law. The law illustrates in detail when and how a person can be found guilty of unlawfully collecting resource data. In general, a person is guilty of data trespass for entering onto either open land or private land that he or she does not have either an ownership interest in or was not given permission by an owner, or tenant, lessee, etc., to enter onto with the purpose of collecting resource data.
The law defines resource data as “…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.” Resource data does not include data for surveying or information to determine boundaries, data used by a state or local governmental entity to assess property values, or data collected by a peace officer acting in a legal capacity. Punishment for data trespassing is either (1) imprisonment for not more than one year, a fine of not more than $1,000, or both OR (2) imprisonment for not less than 10 days nor more than one year, a fine of not more than $5,000, or both if the person has been previously convicted for the crime.
With all the details of the law out of the way, you might be wondering why it is being constitutionally challenged and by whom. The lawsuit has been initiated by Western Watersheds Project, National Press Photographers Association, Natural Resources Defense Council, People for the Ethical Treatment of Animals, and Center for Food Safety. The complaint alleges that Wyoming’s data trespassing law violates the First Amendment, the Equal Protection Clause of the Fourteenth Amendment, and the Supremacy Clause.
A main point of contention seems to be the following language, where “collect” is defined: “…means to take a sample of material, acquire, gather, photograph or otherwise preserve information in any form from open land which is submitted or intended to be submitted to any agency of the state or federal government.” The plaintiffs argue that prohibiting data in this way undercuts the protection of public land and the environment.
Farm data rights, whether it is for crops or water quality, is a hot legal topic in today’s agriculture community. Protection of farm data is a huge concern and the Wyoming legislature took action by passing a law. As we have seen with farm protection laws, when one state takes action, other state legislatures frequently take notice and start following suit. If a state law does succeed a constitutional challenge, what will be next? What if it fails? Will states follow suit? Does there need to be a law to help protect data? I do not know the answer but it is a topic worth keeping up to date with. I will keep you posted as the case evolves, so keep checking back to the blog for updates.