Judge strikes down ‘data trespass’ laws as unconstitutional

The District Court of Wyoming has ruled controversial data trespass laws passed by the Wyoming Legislature violate the First Amendment of the U.S. Constitution and has blocked the state from enforcing them.

The statutes, passed by the Legislature in 2015 and amended in 2016, made illegal the collection of research data, photographs and other information from private lands and from public lands if private lands had been crossed to reach data-gathering sites.

Environmental, animal rights and food safety groups joined with the National Press Photographers Association to take Wyoming to court over the data trespass laws in 2015, claiming they violated constitutional rights of free speech and equal protection under the law.

The ruling released Monday afternoon upheld the plaintiff’s free speech concerns.

“The government has not proven a strengthening of the state’s trespass laws would not accomplish the same goals without infringing on protected speech,” Judge Scott Skavdahl wrote.

Western Watersheds Project, the National Press Photographers Association and the Natural Resources Defense Council are listed as plaintiffs in the court judgement

WyoFile reporter Angus M. Thuermer Jr., a member of the NPPA, became a witness in the lawsuit in January 2018.

The laws imposed additional criminal and civil penalties beyond trespassing laws for anyone who collected research data, took photographs or other forms of “preserv[ing] information in any form.” It also required government agencies to erase any data that was collected in violation of the laws.

Opponents of the law had argued it was written in part to deter science or other data collection that might cast ranching practices in a negative light. Though the state had tried to argue otherwise, Skavdahl concluded that the statutes had been written to curtail a certain type of free speech — “the collection of resource data relating to land or land use.”

“There is simply no plausible reason for the specific curtailment of speech in the statutes beyond a clear attempt to punish individuals for engaging in protected speech that at least some find unpleasant,” Skavdahl wrote.  

The court found “plausibl[e]” the advocacy groups’ arguments that the inaccuracies of maps and GPS and the “intertwined nature of public and private lands in Wyoming” have led to some parties refraining from practicing their First Amendment rights out of a fear of the law.

Thuermer’s affidavit that fear of the law had led him to curtail his work as a photojournalist covering public land and environmental issues was among those cited by the court. The state challenged Thuermer’s affidavit but the court upheld it, according to the ruling.

Court journey

In 2016, lawmakers tried to amend the statutes to eliminate free speech concerns — changing references of “open lands” to more specific language about entering or crossing private land to access land where data is collected. Lawmakers also eliminated a requisite that it be collected for submission to state or federal agencies in order to violate the statutes, meaning photographers, journalists and even tourists taking “selfies” could be in violation.

In September 2017, the Tenth Circuit Court in Denver concluded that data collection was protected speech under the First Amendment, and sent the case to the District Court of Wyoming to reach a final determination on the statutes.

Both the state and the advocacy groups had asked for a summary judgement on the case, Skavdahl wrote — a message to the court that neither party disputed the facts of the case and they were instead seeking a judgement on the strength of the law.

Monday’s ruling provided that clarification, and it went against the state and the lawmakers who crafted the statute.

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