Last week, the Arkansas legislature passed House Bill 1665, which would strengthen private property protections and make corporate whistleblowing more difficult. HB 1665, formally titled “a cause of action for unauthorized access to another person’s property,” not only outlines penalties for those who obtain damaging information via illegal trespass—it also opens the door for businesses to sue anyone who damages their reputation with unauthorized video or photographs. The bill will now head to the desk of Republican Governor Asa Hutchinson, who’ll need to decide whether to veto the bill or sign it into law.
Outcry from animal welfare groups, who rely on undercover whistleblower footage in their advocacy, has been immediate. “With the recent USDA action to take down records of Animal Welfare Act inspections, it’s a potentially devastating blow to transparency and animal welfare in our nation,” writes the Humane Society of the United States, in a statement on its website. Modern Farmer called it “ag-gag” legislation, a term coined by New York Times columnist Mark Bittman in 2011 to describe the trend of states criminalizing undercover surveillance on farms and kill floors.
Still, it’s worth noting that HB 1665 has some significant differences from its predecessors.
The most obvious one is that the bill is not aimed specifically at agricultural production: it pertains to virtually any business operation. (State agencies, state-funded colleges and universities, and medical providers are exempt.) In the past, detractors have made much of the way ag-gags have provided farms and food companies with a unique set of legal protections While the scope of HB 1665 is not ag-specific, it has much in common with its more farm-focused counterparts in Montana, North Dakota, Utah, Kansas, Iowa, Missouri, and North Carolina. Namely, it outlines penalties for people who obtain audio or videotape by trespassing, by misrepresenting personal information to obtain employment, and by installing hidden cameras on the premises.
All this, of course, makes whistleblower investigations harder for professional journalists and PETA activists. But what about whistleblowing that comes from insiders, like when employees happen to see something wrong and capture it on an iPhone? What about systemic misconduct captured by honest-to-goodness workers just going about their day?
That’s where things get tricky. HB 1665 falls short of banning all filming, which is something some of its precursors have attempted. When I covered this topic in 2011 for The Atlantic, for instance, I wrote about a bill in Minnesota (it failed) that would have criminalized any unauthorized documentation of an agricultural facility in any medium. That broader approach was taken in North Dakota’s ag-gag law, which was in fact passed, and which makes it a felony to “enter an animal facility and use or attempt to use a camera, video recorder, or any other video or audio recording equipment” without permission.
Such latitude was also present in Idaho’s ag-gag, which made it a misdemeanor (punishable by up to $5,000 and one year in jail) to make an audio or video recording, of any kind or for any reason, without the facility owner’s ”express consent.” But a federal court struck down that law as unconstitutional in 2015. That might be one reason that a subsequent law, North Carolina’s, was more circumspect. And HB 1665 adapts North Carolina’s more ambiguous phrasing almost verbatim.
HB 1665 makes an employee liable for damages due to unauthorized film or video on a private property, but only provided the person has “knowingly enter[ed] a nonpublic area of commercial property for a reason other than a bona fide intent of seeking or holding employment or doing business with the employer.” I’m not a lawyer, but to me that seems unclear. The language would seem to refer to a person who entered a facility with the express intent of creating an incriminating video tape. But what about footage taken by somebody who was already there? Does “bona fide intent of seeking or holding employment” include whistleblower footage an authorized employee might’ve obtained during a day’s work?
Meanwhile, the situation is darkening for journalists on another front: defamation. Reuters reports that ABC News will face a massive suit—as much as $5.7 billion in damages—for slandering the good name of Beef Products International in its 2012 video expose on “pink slime.” Though anchor Diane Sawyer has been given a pass, the potential liability to the reporter and network could equal an entire year of ABC’s total revenue.
In this case, it’s hard to say who will prevail. ABC is liable under South Dakota’s “Agricultural Food Products Disparagement Act,” which defines “disparagement” as “dissemination in any manner to the public of any information that the disseminator knows to be false and that states or implies that an agricultural food product is not safe for consumption by the public” (emphasis added).
BPI has at least one thing going for it: “pink slime,” as gross-sounding as it is, is not a safety or health risk. The corporation has got a case if it can demonstrate that ABC and its reporter Jim Avila knowingly suggested otherwise. But the first part of the definition of “disparagement” will make things trickier: the plaintiff will also have to demonstrate that ABC spread information it “knows to be false.” That will be harder to do, if ABC’s reporting was solid, and if the report—despite its sensationalism and level of nauseating detail—did not contain factual untruths.
All this pokes at the conflicted heart of the whistleblowing issue more generally. When it comes to industrial agriculture, there’s a wide gap between consumer expectations on the one hand, and everyday operations of food processors. The truth is, there are practices the public would find deeply distasteful, especially in the meat industry, that break no laws and violate no industry norms. (Pink slime is a good example.) And glimpses of standard agribusiness procedures—whether from a journalist or an employee’s undercover cam—can still shock the public, and deeply damage a company’s reputation and bottom line.
It’s unclear how how HB 1665 would impact employee whistleblowers troubled by what they witness at work. But it does seem clear it would make critiques from outsiders—from PETA to the nightly news—more difficult (and potentially criminal). The question is which our lawmakers will value more: the right of law-abiding businesses to be left alone, or the right of outsiders to report on an industry’s inner workings, and let the public decide for itself.