Proposed legislation targets hidden cameras in agriculture

Feb 3, 2012

While the Humane Society of the United States (HSUS) is hailing the demise of Florida legislation that would have restricted undercover video and photos, other states are working to get similar legislation passed.

In Iowa, a bill introduced by Democratic Sen. Joe Seng and Republican Sen. Tim Kapucian would make it illegal to take a job or gain access to an animal facility under false pretenses.

Iowa’s House File 589, known as the “ag gag bill,” if passed would become the nation’s toughest legislation against animal rights activists who use what they call covert operations to take videos and photos of alleged animal cruelty. The bill would make it illegal to videotape at farms, ranches, and other animal operations while undercover. Producers say the legislation is needed to protect Iowa against activists who deliberately cast their operations in a negative light and continue videotaping rather than reporting abuse immediately.

Animal welfare groups claim the undercover recording is vital to protect livestock and food safety and that they must document multiple instances of abuse to show a pattern.

Other states with similar pending legislation include Indiana, Nebraska, New York and Minnesota.

Iowa’s bill passed the House last year, but stalled in the Senate after the attorney general’s office pointed out potential legal challenges the bill would create. Based on freedom of speech, the U.S. Supreme Court has ruled that films exposing animal cruelty are legal.

Iowa’s Senate rewrote the bill in late 2011, eliminating the false pretenses language that prohibited animal activists from lying to employers. The rewritten language makes it a crime to enter or remain at an agricultural operation or to have a recording device without express permission from the owner.

According to Kapucian, the primary wording makes it illegal for an applicant to lie on a job application, and is specific to animal agriculture production.

Critics contended last year that current trespassing law already  makes such activities a crime and that the Senate version also poses constitutional problems because it would require anyone who makes undercover recordings while trespassing to turn over the recordings to authorities.

The Senate was expected to make more amendments to the bill last week. If passed by the Senate with amendments, it will have to return to the House for consideration.

According to HSUS, the Florida bill brought up discussion of first amendment rights, food safety, animal welfare and workers’ rights.

Supporters of the bills say activists’ videos showing suffering livestock are more about political influence and fundraising than animal welfare.

“The people that are doing these activities are working toward a meatless society,” Kapucian said. “Their whole goal is to put a producer in a bad light.”

Kapacian points out that ag doesn’t want to see the animal abuse either, but that the videos and accusations can put a company out of business before it is ever reviewed. “Once the accusations are made, the damage is already done,” he said.

Sen. Tyson Larson filed the Nebraska bill. It would require people who suspect animal abuse or neglect to report their suspicion to authorities within 12 hours, instead of the current twoday window. They also would have to surrender all video, photo and audio evidence immediately to investigators, instead of using them to promote their cause.

“Ninety-nine point nine percent of farmers are doing things the right way,” he said.

Animal rights groups claim their investigations often take months to establish a pattern, and that the proposed bills are designed to hide animal abuse from the public.

Just last week, HSUS released two undercover videos that it says document “unequivocal proof of the inherent and extreme abuse associated with gestation crate confinement,” at Oklahoma facilities owned by Seaboard Foods and Prestage Farms. Industry experts and veterinarians that have viewed the tapes say there is no evidence of abuse, but some media outlets have already condemned the company based on the release.

The videos largely document injuries and sores that HSUS says are the result of gestation crate confinement and behaviors, such as biting at the bars of the crates.

Noting that Seaboard has a policy of using “the most humane practices” posted on its website, HSUS also has filed complaints with the Securities and Exchange Commission and the Federal Trade Commission alleging deception by the company.

In 2007, an HSUS activist worked in the Hallmark/ Westland Meat Packing Company for approximately six weeks, obtaining video that, four months later, would run rampant through media outlets and create the largest meat recall in history.

According to testimony from HSUS President and CEO Wayne Pacelle, “HSUS conducted a thorough investigation that took several months, with our investigator undercover at the plant for six weeks during October and November 2007, and then the investigation continuing after he left the site as we analyzed documents and compiled further evidence. These are long-term investigations, and we don’t parachute in and know everything there is to know in a single day. If we are going to accuse a company of wrongdoing, with broader implications for the public, we want to make sure we collect as much evidence to support our claims as possible, and we want to be sure to present a fair and accurate picture of what went on at the plant.”

While animal activists are typically the ones with the hidden cameras, the media also has a track record of sending in their own undercover spies.

In 1994, CBS was in court in South Dakota on charges that a video the network filmed secretly inside a meatpacking plant in Rapid City was illegal. The packing plant tried to stop the video from being aired, but an emergency order by a Supreme Court justice allowed it to run.

Circuit Judge Jeff W. Davis barred the network from using the footage during a “48 Hours” segment, titled “Bum Steer.” Concluding that the First Amendment did not apply because the network obtained the videotape through “calculated misdeeds,” Davis ruled that Federal Beef would suffer “irreparable harm” if the tape were broadcast. In an appeal hours before “Bum Steer” was to go on the air, CBS got permission from a Supreme Court judge to use the disputed videotape.

Current state photo shooting, audio recording and video tapping laws vary.

There is a federal law which makes it a crime to secretly capture photo or video images of people in places and situations in which they have an expectation of privacy. Most states have similar laws. These laws are often referred to as “video voyeurism” statutes.

These laws make it a crime to secretly record or distribute images of people in places where they have a reasonable expectation of privacy, such as bathrooms or locker rooms.

In addition, each state has different wiretapping or eavesdropping laws. The federal wiretapping statute allows phone calls and other electronic communication to be recorded with only one party in consent, which means if the person taping is also part of the conversation, it can be recorded.

In addition to the federal law, each state has its own statutes regarding the recording of conversations, although most follow the federal law.

The 37 states which allow “one party consent” recording of oral communications are: Alaska, Arkansas, Colorado, Georgia, Hawaii, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Minnesota, Mississippi, Missouri, Nebraska, Nevada, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Okla homa, Oregon, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, West Virginia, Wisconsin and Wyoming.

The District of Columbia also allows people to record conversations with the consent of only one party. Nevada has a one-party consent statute but there is some question as to how the law should be interpreted by the courts—it could be considered an “all party consent” state.

The 12 states which require all parties to a conversation to consent before it can be recorded are: California, Connecticut, Delaware, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, New Hampshire, Pennsylvania and Washington. In California, there is an exception—you can record a conversation with the consent of only one party if certain criminal activity is involved. — Traci Eatherton, WLJ Editor