Arkansas Legislators Want To Make Corporate Whistleblowing Illegal

from the ag-gag-but-for-everybody dept

Tue, Mar 21st 2017 4:19pm — Tim Cushing

Another "ag gag" law is in the works in Arkansas. These bills are brought under the pretense of safety -- both for the person supposedly breaking them, as well as for the employees of the entity "trespassed" upon. The unspoken aim of these laws is to prevent whistleblowing, and they often spring into existence after someone has exposed horrible practices at local businesses -- in most cases, the mistreatment of animals. The other consequence of most of these laws -- unintended or not -- is to deter employees from speaking up about questionable business practices, as there often is no exception carved out for employees of the companies protected by these laws.

Kaleigh Rogers of Vice reports another ag gag bill has passed the Arkansas state House and is on its way to a Senate vote. And once again, the bill's wording would deter whistleblowing and make journalistic efforts a civil violation.

Arkansas senators are considering a bill that would allow private businesses to sue whistleblowers that expose abuse or wrongdoing. The bill has already passed the house, but not without receiving plenty of dissent from Republican lawmakers, free speech proponents, and animal rights groups.

The law would make it legal for businesses to sue anybody who goes onto a business's private property and, among other acts, "records images or sound occurring within an employer's commercial property and uses the recording in a manner that damages the employer." This include undercover investigators, but also employees: unless an employee is just doing his or her job, any recordings or information that exposes wrongdoing could be grounds for a lawsuit.

In between all the wording [PDF] that would be expected in a normal trespassing law (unauthorized access, theft, damage to property) are clauses that make exposing wrongdoing grounds for a lawsuit. This section makes the law's deterrent to whistleblowing explicit.

Records images or sound occurring within an employer's commercial property and uses the recording in a manner that damages the employer.

That's combined with an earlier phrase that applies the law to employees, not just muckraking interlopers.

An act that exceeds a person's authority to enter a nonpublic area of commercial property includes an employee who knowingly enters 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 and without authorization…

Excepted from the law are all sorts of government agencies, which are apparently welcome to damage places of employment at will. In addition to damages and fees assessed as the result of a civil action, the state has the option to hit violators (which includes anyone who "directs or assists" the whistleblower/journalist) with $5,000/per day in fines.

The representatives pushing this bill are pretending it's about safety.

Representative Aaron Pilkington (R), who voted in favor of the bill, said the language is intended to prevent people from trespassing and potentially putting themselves in danger.

"It's just about going into places you're not allowed to be in," Pilkington told me. "If you work in a daycare center and there are problems going on, you have every right to whistleblow on that. But if you hear there's a daycare three towns over where something's going on and you're sneaking in there with a video camera, that's not right."

That's a really weird -- and really dangerous -- assertion to make. Violations should be unseen and unheard, apparently… unless they happen to occur at your place of employment. And even then, the wording of the bill contradicts the protections Pilkington alludes to. The bill specifically forbids employees from entering areas not directly-related to their job description and making any sort of recording that "damages" their employer. Whistleblowing always results in some sort of "damage," even if that damage is purely reputational and can be repaired by swift corrective action.

The only reason to pass a bill like this (rather than use existing trespassing laws to punish unauthorized entry) is to deter reporting and whistleblowing. It serves no purpose otherwise. Supporters of the bill know this, though they'll never publicly acknowledge this fact. If it passes, it should expect an immediate constitutional challenge. The bill does too much damage to accountability and protected speech to survive a second read by the courts.

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Filed Under: arkansas, corporate whistleblowing, journalism, leaks, whistleblowing

34 Comments

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TechDescartes (profile), 21 Mar 2017 @ 4:46pm

Talking Points

But if you hear there's a daycare three towns over where something's going on and you're sneaking in there with a video camera, that's not right.

"Think of the children"? Check.
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That One Guy (profile), 21 Mar 2017 @ 4:46pm

So much wasted text...
... on such transparent lies. They should just save time and reduce the bill to 'Any action that in any way negatively impacts the profits and/or well-being of a business is illegal.'
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That One Guy (profile), 21 Mar 2017 @ 5:25pm

Re: Talking Points
Given the person in that example is supposed to *not* investigate what's going on, it's more 'ignore the children, think of the company profits'.
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Anonymous Coward, 21 Mar 2017 @ 5:35pm

Re: Talking Points
What if it's a pizza parlor run by hillary?
Is it ok then?
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Bank Robber Extraordinaire, 21 Mar 2017 @ 5:37pm

Cool!

I will so sue the shit outta anyone that rats me out.
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Anonymous Coward, 21 Mar 2017 @ 5:50pm

National Labor Relations Act
There are quite a few rulings relating to this from the NLRB.

google search
"national labor relations board" recording

Also do a news search for the above term, as well as the one below:

"national labor relations board" whistleblowing
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Anonymous Coward, 21 Mar 2017 @ 5:51pm

Aaron Pilkington - go fuck yourself. Was that clever or what?
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Anonymous Coward, 21 Mar 2017 @ 6:39pm

I feel like so many state legislatures need constitutional law professors to walk around the congressional floors dressed up like the Constitution and just smack down all the unconstitutional bills they propose. It would be a lot faster than wasting time passing unconstitutional laws and then wasting taxpayer money defending them against lawsuits that ultimately kill the laws. But I guess corporate donors don't give you as much money if you fail to get their bills off the floor.
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Anonymous Coward, 21 Mar 2017 @ 6:54pm

Re:
Get someone with Gordon Ramsay's American TV personality temperament and turn it into a reality show.

On this episode of Hell's Congress...
"This bill is RAW!"
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That Anonymous Coward (profile), 21 Mar 2017 @ 6:59pm

So this means that these representatives are introducing a strict policy providing oversight of their corporate citizens, to make sure that they won't put profits over public safety right?
Or they are just going to cash the "contribution" checks, convince the public this had to be done to stop eco-terrorists, while making sure their food isn't sourced from these companies because FSM knows how badly they manage the facilities.

How many lives was the check worth?
This is what citizens need to ask legislators.
There is plenty of history that the "free market" doesn't regulate itself until there is a bodycount & when public furor dies down those new self regulation plans get rolled aside.

Somehow the biggest supporters of this will manage to keep their jobs, despite the bodycount, because they will appeal to the fear of the people over imaginary things who will manage to accept that corporate profits mean sometimes little people need to die.
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New Mexico Mark, 21 Mar 2017 @ 7:18pm

Re: Talking Points
No. It's to "prevent people from putting themselves in danger". Anyone who's been surrounded by a pack of feral toddlers would fully understand this.
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Anonymous Coward, 21 Mar 2017 @ 8:17pm

Re:
Well if you look at it in the right light, it is simply a scam to siphon tax payers money into their own bank accounts.
They know it won't pan out and they know it is against the most sacred law of the country, yet they use tax money for it. They do it because the big industries will notice them and either support them for bigger positions in politics (bigger paycheck) or hire them later on in the private sector (much bigger paycheck).
They are dishonest and disloyal for money and no better than crooks.
This is the best case scenario. The really bad part is when they actually get the law approved and, like you say, lives are lost... happens way to often.
I see very few mentions of the word "ethics" in politics these days.
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TechDescartes (profile), 21 Mar 2017 @ 8:37pm

Re: Re: Talking Points
"Don't think too hard about the children."
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Bergman (profile), 21 Mar 2017 @ 8:46pm

If criminal prosecution for committing crimes is actionable damage...
Doesn't that mean that you could sue the state of Arkansas for lost wages for the time you spent in prison for committing a crime?
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Anonymous Coward, 21 Mar 2017 @ 10:13pm

Re: Re:
There's so much pork in this bill it's about to start squealing!
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norahc (profile), 21 Mar 2017 @ 10:30pm

Re: Re: Re:
"There's so much pork in this bill it's about to start squealing!"

Well, they don't call them Razorbacks for nothing.
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David, 22 Mar 2017 @ 1:26am

Agricultural terrorism
Those agricultural terrorists exposing animal abuse to the detriment of local business are like the childhood terrorists exposing child abuse to the detriment of local business.

Just because laws are broken and living beings tortured does not mean that you can jump in and interfere with viable business interests: that's investigative terrorism.

Where would this country be if it was no longer allowed to call a spade a gun?
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Ninja (profile), 22 Mar 2017 @ 4:21am

Re: Talking Points
No seriously, the guy is a moron. If there's child abuse of any kind in there and all the employees are participating IT'S FREAKING RIGHT IF ANYBODY PUT A GODDAMN CAMERA AND MAKE THEM PAY.

It's not like you are putting images without consent of normal activity. It's proof of criminal activity and it should stand in court and the ones behind the recording should be fully protected.
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Allen Wr, 22 Mar 2017 @ 4:21am

Re: If criminal prosecution for committing crimes is actionable damage...
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Anonymous Coward, 22 Mar 2017 @ 5:05am

IIRC, there are cases where you are required, by law, to report crime(s) you have witnessed.

Now with this proposed law, where you are not allowed to report crimes witnessed, one is in quite the quandary. Even though having done nothing wrong, I suppose one would then choose the lesser of the two potential sentences and do your time in private prison hard labor camp
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Anonymous Coward, 22 Mar 2017 @ 5:37am

This reads like it could be used to basically outlaw investigative journalism.
[ link to this | view in thread ]
David, 22 Mar 2017 @ 6:07am

Re:
The right to swing the fist of journalism ends at the nose of the lawmakers, and those noses are buried deep in big business' behind. So journalism is to aim elsewhere.
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ShadowNinja (profile), 22 Mar 2017 @ 6:10am

Re: Re: Talking Points
Then we don't even need a whistle blower or video evidence, because everyone knows it's true!
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Anonymous Coward, 22 Mar 2017 @ 6:42am

Re: Re:
wut?
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Anonymous Coward, 22 Mar 2017 @ 7:19am

"This include undercover investigators, but also employees: unless an employee is just doing his or her job, any recordings or information that exposes wrongdoing could be grounds for a lawsuit."

Exposes wrongdoing. Sounds like you don't need to cause actual damage, just point out they are breaking the law could expose you to a lawsuit.
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That One Guy (profile), 22 Mar 2017 @ 7:36am

Re:
'Well yeah, why else did you think we- I mean not at all citizen, this is to protect the public from those voyeurs that would care more about a juicy non-story than the rights of the poor beleaguered business owners? Any real reporting of questionable actions will of course go through the proper channels, to be addressed and dealt with by the proper authorities, this is merely to deal with those fiends that think that they know better than those authorities.'

-Arkansas tools
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Anonymous Coward, 22 Mar 2017 @ 10:10am

hate to say it...
but this is one of those times where if you have nothing to hide then you have nothing to fear and the people on your property can be arrested under normal trespassing laws.

I like my privacy just like corporations and other people, but if I'm doing something wrong/illegal/unethical and I get caught darn right the person catching me should be safe from retaliation on that issue.
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Anonymous Coward, 22 Mar 2017 @ 10:51am

Re: Re:
We need a way for voters to hold an emergency vote to potentially remove any elected official from office for egregious failure to represent their constituency at any time during their term. The equivalent of getting fired from any other job for dereliction of duty.
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Anonymous Coward, 22 Mar 2017 @ 11:11am

Re: Re: Re:
It is referred to as a recall election.
Only some states allow it, the fed not at all
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Chuck, 22 Mar 2017 @ 11:21am

The unspoken aim...
The unspoken aim of this bill is to cover up something Wal-Mart is doing wrong.

How do I know? Dude, it's Arkansas. They don't HAVE any other corporations large enough to even BE evil.

Sauce: I'm from Alabama, and we don't have any at all. I mean, unless you count BCBS's 97% insurance monopoly...
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Anonymous Coward, 22 Mar 2017 @ 11:26am

Re:
That's only one of its intents. The other is to silence any form of disclosure of illegal activities under the guise of keeping the whistle blower safe. There are already laws on the books about criminal trespass. This is entirely about silencing criticism and curtailing those dirty whistle blowers from making a mockery of our glorious capitalistic society! (think Edward Snowden, Chelsea Manning, et al).
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kd5dvm, 22 Mar 2017 @ 8:21pm

More pilfering by dirty politicians
Dirty politicians pushed a bill to allow church members to carry firearms into churches. The churches agreed. Churches pushed a bill to carry firearms into government buildings in Arkansas. Dirty politicians removed their bill to carry fire arms into churches. Most churches really don't give a damn if their members bring their guns to church but dirty politicians are scared to death of citizens bearing guns in public government buildings. All I can say is figure out who the real dirt balls are who hide behind legal jargon, strip them of their rights to practice law and lets get back to the 10 commandments, pledge of allegiance, prayer in school and old fashioned classroom discipline. I bet we can take America back! Also, do away with drugging up students with ritalin and shrinking their brains...
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Wendy Cockcroft, 23 Mar 2017 @ 3:27am

Re: More pilfering by dirty politicians
Hey kd5dvm,

RE: getting back to the 10 commandments, pledge of allegiance, prayer in school and old fashioned classroom discipline. I bet we can take America back!

Erm... where do we start?

It's the United States of America, not the Evangelical Alliance of America. I have no problem with the pledge of allegiance or discipline and I agree with you on discipline but even members of other Christian denominations, e.g. Quakers, would object to having religious practices from groups they disagree with forced upon their children as a condition of getting an education.

Can we cut out the exceptionalism, please? It's destroying democracy. Thank you.
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Anonymous Coward, 4 Apr 2017 @ 10:54pm

USA soon to be known as UCA

United Corporations of America
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