An Overview of State Laws Prohibiting Undercover Video Surveillance

The agriculture community has faced problems with animal welfare organizations using undercover videos that are sensationalizing alleged acts of animal cruelty on livestock operations.  Larger livestock farmers using conventional production practices and concentrated animal feeding operations are at greater risk.  Due to the media attention from these undercover videos, several states have developed legislation aimed to proscribe undercover video surveillance on farms (referred to as “ag gag” laws by opponents).  This type of legislation has been controversial in the American public questioning the constitutionality.

States That Currently Prohibit Undercover Investigations

Kansas

Kansas was the first state to pass an animal terrorism statute in 1990.  In summary, Kansas gives criminal liability to those who, absent consent from the owner (a) with the intent to damage or destroy the animal facility actually damage or destroy an animal facility (or any animal or property therein), (b) exercise control over an animal facility with the intent to deprive the owner of such facility (or any animal or property therein), (c) with the intent to damage or destroy the animal facility enter an animal facility and/or remain concealed with the commit or attempt an act prohibited by this statute and/or take photographs or video coverage.  See K.S.A. § 47-1827(a)-(c).

Furthermore, the criminal statute proscribes a person, without consent from the owner, and with the intent to damage the enterprise conducted at the animal facility, enter and/or remain in the animal facility if the person had notice that they were forbidden or received notice but failed to leave the premises.  See K.S.A. § 47-1827(d).  Both oral and written communication (e.g., signs posted on the facility) by the owner or someone with apparent authority (e.g., employee) or fencing or some other type of enclosure by the owner constitutes “notice.”   Furthermore, K.S.A. § 47-1828 sets forth a civil cause of action in district court for any person who has been damaged by 47-1827 (the criminal statute).  The plaintiff may be entitled to “three times all actual and consequential damages. . .” (including production, research, testing, replacement and crop/animal development), court costs and reasonable attorneys fees.   Importantly, the criminal statute does not apply to “lawful activities of any governmental agency or employees or agents thereof carrying out their duties under law.”  K.S.A. § 47-1827(h).

Montana and North Dakota

In 1991, Montana enacted the “Farm Animal and Research Facilities Protection Act”, M.C.A. § 81-30-101 et seq., with similar criminal prohibitions and civil relief as Kansas.  Both government officials carrying out their duties and “humane animal treatment shelter or its employees whose primary purpose is the bona fide control or humane care of animals or the enforcement” are exempt from this statute.  Likewise, North Dakota also followed in Kansas’s footsteps in 1991 enacting similar criminal/civil provisions.  See Chapter 12.1-21.1-01 et seq.

Iowa and Utah

Iowa enacted a statute in March 2, 2012 attributing misdemeanor liability to “animal production facility fraud.”  Under section 717A.3A(1), a “person is guilty of animal production facility fraud” if they (1) obtain access to an agriculture production facility under false pretenses, or (2) make a false statement on an employment application with the intent to commit an act that is knowingly prohibited by the owner of the agricultural facility.  See section 717A.3A(3).  The statute also proscribes aiding and abetting the commission of animal production facility fraud.  Similarly, Utah enacted “Agricultural Operation Interference” statute on March 20, 2012.   The Utah statute also prohibits farm employees and criminal trespassers to take unauthorized photographs, videos and sound.  See U.C.A. § 76-6-112(c)-(d).

States With Pending “Ag Gag” Legislation

Illinois, Indiana, Minnesota, Nebraska, Tennessee and New York currently have pending “ag gag” legislation.  Florida’s recently died in budget.  Missouri also has pending legislations allowing unedited surveillance to be taken and then turned over to the police.