GPS, Maps, and cameras ILLEGAL

[sardog1]

Ahem. I'm pretty sure the purpose of this legislation is to forestall the collection of data to be used as evidence that an endangered or threatened species is present on a parcel or uses the parcel. As were some of the participants in this thread from a year ago when the bill was introduced.

Landowner groups have been up in arms about this sort of thing for some time.

 

[David Metsky]

It does not limit the law to government agencies and leaves the punishment to other than government agencies open and unlimited.

No, penalties are not "open and unlimited" when not specified. That's not how the law works. If no penalties are specified, then there are no penalties.

 

[Amicus]

No, penalties are not "open and unlimited" when not specified. That's not how the law works. If no penalties are specified, then there are no penalties.

I'm still waiting for an NH attorney to arrive, but perhaps they're reluctant to give their advice away gratis. Absent one, let me suggest that it just cannot be the case that a violation of the broad prohibitions in part 1 of this statute, which bar all persons from the described activities, would have no consequence, unless the violator happened to be a public official subject to one of the "remedies" described in part 6.

They are not characterized as "exclusive" remedies, for one thing. For another, even if the members of the NH House serve part-time and for little dough, they must have some idea of the consequences of the laws they pass, and they see a lot of them. I don't believe they would adopt a laughably pointless statute that "prohibited" activities that anyone could thereafter perform with impunity. Moreover, others besides the named House sponsors have probably had a hand in the drafting, and no doubt gave some thought to consequences.

At a minimum, the prohibitions of part 1 would establish the legal right of any property owner not to have any of the described activities performed on or with respect to that owner's property, which I'm sure would be useful and maybe dispositive in any civil action for damages or injunctive relief.

 

[David Metsky]

I don't believe they would adopt a laughably pointless statute that "prohibited" activities that anyone could thereafter perform with impunity.

Not to be blunt, but if there are no legal consequences mentioned in the bill (and we posted the entire bill, it's not very long) then there are no consequences. Either they exist in the text of the bill or they don't.

At a minimum, the prohibitions of part 1 would establish the legal right of any property owner not to have any of the described activities performed on or with respect to that owner's property, which I'm sure would be useful and maybe dispositive in any civil action for damages or injunctive relief.

Landowners have the right to kick you off their land now, and to prevent you from doing anything there that they don't want. This bill says nothing about civil penalties. I'll leave it to the lawyers to discuss that aspect of the bill.

 

[Trail Bandit]

What if the "private property" has an easement, paid for with tax payer money, that guarantees public, pedestrian access?

 

[nartreb]

Metsky, you missed Amicus' point a few comments back.

the presence of special remedies in a bill that illegalizes certain conduct, such as the provisions in this one aimed at public officials, is unlikely to mean that there are no general remedies. Somewhere in the large body of NH Statutes, there are likely to be general remedial provisions with respect to violations of law, which miight include fines, jail, injunctive relief and I don't know what else.

I made the same point in the "dirty dozen" thread. In many states what you'll find is that there are penalties for "any violation of this Title" so that, e.g. any violation of the chapters devoted to consumer protection, which are all under the same Title, are causes for civil action with an opportunity for triple damages; any violation of the criminal statutes, which are under a different Title, carry fines and/or jail time, and so on. There's usually NO explicit penalty for "constitutional" provisions ("the Governor shall appoint, within X days...") but injunctive relief may still be available under traditional principles.

So just because the bill doesn't specify a penalty, doesn't mean there isn't one.

There's a separate question of who has power to exact the penalty, and whether they have any interest or funding to do so.

This bill attempts to prohibit use of data by any "person". It would probably *not* be invalid on grounds of retroactivity if the *use* occurs after the bill passes. (It might be invalid on free speech or privacy grounds in some cases but not in others.) So I'm particularly interested in finding out what the penalty is for use of data, who would be empowered to prosecute it, and what defenses are available.

 

[nartreb]

Here's a penalty clause within the bill:

7-C:3 Property Owner Response. If written permission is not received from the property owner within 15 days of the notice, permission to enter the property shall be deemed denied.

In other words, the data gatherer is deemed a trespasser, and subject to both civil and criminal prosecution.

I think this is a change from the current state of affairs for unposted land, or land posted as open for, e.g., hiking. Previously, the landowner might have had a harder time establishing that entry for the purpose of data gathering constituted a trespass if the public already had some right of entry.

Trail Bandit's question about easements is a good one. It probably depends on the terms of the easement. If the easement explicitly allows data gathering, I think it would trump the new bill. That seems like a very rare case. Where it merely allows "access", there's a good chance a court would say that "data gathering" still requires the landowner's permission once this bill becomes law.

One of the bigger problems with this bill, of course, is that "data gathering" is so broad and vague. It is very hard to predict how it would be interpreted in practice.

 

[JacobH]

So... about that Ossipee Mountain Forest Legacy Tract...

 

[grouseking]

I would think that as long as you stick to a trail, to where you are given permission to hike, for example, the Belknap or Ossipee Range, then there shouldn't be an issue. I don't know the rules, and am hardly a lawyer, so take that last statement with a grain of salt and realize it is just my opinion that makes sense to me.

 

[RoySwkr]

I would think that as long as you stick to a trail, to where you are given permission to hike, for example, the Belknap or Ossipee Range, then there shouldn't be an issue.

I think the concerns of TB are that the law is so open-ended that someone could be selectively prosecuted for almost anything. But I believe they also passed jury nullification, so just insist on a jury trial

TB, why not go to the Senate hearing and see what the sponsors say it is for, and suggest amendments?

 

[skypix]

Tinfoil hats required in NH House

 

[REK]

Tinfoil hats required in NH House

That's pretty insulting
Bob

 

[Trail Bandit]

The NH Senate public hearing on HB 514 will be held starting at 1:00 PM on March 29, 2012 in room 101 of the Legislative Office Building (behind the state house). Anyone can come and listen to the discussions and speak to the Senate Committee members if they wish.

 

[Trail Bandit]

House Bill 514 has survived the judiciary committee and is in the senate for vote now. There are a couple of amendments that will be proposed. It came out of committee as follows.
http://www.gencourt.state.nh.us/legislation/amendments/2012-1601S.html

 

[Trail Bandit]

One more note: For those of you who didn't attend the Senate Judiciary Hearing, the loudest of the Ossipee gang were well represented and were accompanied by Jason Stock from the NH Timberland Owner's Association. They were the biggest group that were in favor of the legislation, the other being the fellow who had had his land designated a prime wetland without his knowledge or input. It will be interesting to see what the final bill says.

 

[Trail Bandit]

House Bill 514, has passed the NH Senate. It was modified at the last minute to expand the prohibition of collecting DATA to cover all data, and is no longer restricted to wetlands legislation.
The important part for all users of GPS, cell phones, or cameras is that will no longer be able to write trip reports or share track files. It will be illegal if signed by the governor. Of course, this is just yet another law on the books that is seldom enforced unless someone with connections wants it. As passed, part IV reads:

IV. No data gathered by entering property without the permission of the landowner or an administrative warrant shall be used for any purpose other than law enforcement purposes authorized by statute.

Senate Status


Status PASSED / ADOPTED WITH AMENDMENT
Status Date 4/18/2012
Current Committee JUDICIARY
Committee of Referral JUDICIARY
Date Introduced 2/8/2012
Due out of Committee
Floor Date 4/18/2012

 

[David Metsky]

Mod Hat on
Reminder that we can discuss this issue, but do not us inflammatory language or call people names. I've edited a recent post and will do so again if people cannot follow rules.
Mod Hat off

Again, based on a reading of the bill it is not clear that anything done by private parties and not introduced into a legal proceeding is made illegal by this bill even though you keep saying that. I still don't see what charges would be filed or what penalties would be assessed to a hiker taking pictures or a GPS track.

 

[Billy]

House Bill 514, has passed the NH Senate. It was modified at the last minute to expand the prohibition of collecting DATA to cover all data, and is no longer restricted to wetlands legislation.
The important part for all users of GPS, cell phones, or cameras is that will no longer be able to write trip reports or share track files. It will be illegal if signed by the governor. Of course, this is just yet another law on the books that is seldom enforced unless someone with connections wants it. As passed, part IV reads:

IV. No data gathered by entering property without the permission of the landowner or an administrative warrant shall be used for any purpose other than law enforcement purposes authorized by statute.

Senate Status


Status PASSED / ADOPTED WITH AMENDMENT
Status Date 4/18/2012
Current Committee JUDICIARY
Committee of Referral JUDICIARY
Date Introduced 2/8/2012
Due out of Committee
Floor Date 4/18/2012

It passed? Excellent. Thanks for sharing the great news. A victory for those who believe private property means private property. Thanks again for posting.

 

[MichaelJ]

Yet what remains a problem is the complete lack of clarification of what it means to be "private property open to the public." You know, the kind of situation that gets a landowner a major tax break.

 

[psmart]

Yet what remains a problem is the complete lack of clarification of what it means to be "private property open to the public." You know, the kind of situation that gets a landowner a major tax break.

Just so everyone is clear, the "recreational discount" is a 20% further reduction in the current-use assessment. Although the discount is certainly beneficial to the land-owner, it's small in comparison to the actual current-use assessment, which can reduce the tax value by 90% or more - even if the land is closed to the public.

For example, property with a market value of $100,000 might have a current use assesment of $10,000. At a 2% tax rate this would reduce the tax from $2000 to $200. The recreational discount would be an additional 20%, or $40 in this example. For this landowner, I doubt that the $40 would be a significant factor in deciding whether to keep their land open for public use. Of course, if the land has a $1 million market value, the recreational discount may be a more significant factor.