Under Cover Of Jargon

The Indiana Statehouse is confusing. Often, that confusion is intentional. Lengthy bills are written in turgid “legalese,” and go on for pages. I’m a (recovered) lawyer and my eyes frequently glaze over.

And very often, you don’t have to be a hard-core libertarian to wonder: is this law really needed?

That was my first question when I received an email asking about Senate Bill 471, described as follows:

Would heighten the penalties for protests near oil and gas pipelines and other infrastructure by creating the offenses of “criminal infrastructure facility trespass” and “critical infrastructure facility mischief.” The bill provides that an individual who knowingly enters critical infrastructure facility without permission commits critical infrastructure facility trespass, a Level 6 felony punishable by up to 30 months in prison. Under the bill, recklessly or knowingly defacing such a facility constitutes critical infrastructure facility mischief, punishable by up to six years in prison as a Level 5 felony. In either case, the individual may additionally be liable to the property owner for damages, costs, and attorney’s fees. An organization found to have conspired with an individual who commits either offense may also be liable for a fine of $100,000. The bill newly defines “critical infrastructure facility” under Indiana law to include a range of oil, gas, electric, water, telecommunications, and railroad facilities, as well as any “facility that is substantially similar” to one of the listed facilities.

No one wants to see a “critical infrastructure” damaged. But a bit of digging suggests that more is going on with this bill–being pushed in several states by ALEC, evidently in reaction to Dakota pipeline protests– than the protection of “critical” utilities.

As my correspondent notes,

This description is accurate, but to get into more specifics one of the most troubling provisions is Ch. 10, Sec. 4 that says if an organization is found to be a conspirator with a person convicted of either trespassing or committing criminal mischief on “critical infrastructure” the organization can be fined up to $100,000. Sec. 5(a) could also potentially be interpreted as creating a cause of action by someone who has suffered damages not only against the person who caused the damage, but an organization found to be a conspirator with that person, to recover those damages. If that was the case the organization could be liable for more than a $100,000.

A Sierra Club officer explains the effect:

A couple of years ago the Hoosier Chapter was in discussions with some Northwest Indiana groups about a protest at the BP Whiting Refinery to oppose its expansion to allow it to process tar sands petroleum. When it became clear that some of the groups were contemplating civil disobedience, the chapter withdrew from the discussions, since the Sierra Club forbids illegal activities. In the event, about 40 people sat in front of an access to the refinery and were arrested for trespassing. I believe that most were let go without a fine. Under the proposed law, could we be found to have participated in the protest even though we withdrew? Could we be found liable for informing the public about the protest via our website, FB, and twitter, even though we didn’t support the civil disobedience? Certainly we would have to think long and hard about even participating in such discussions under this bill.

And that, I think, illustrates the actual purpose of the bill: to stifle dissent.

Indiana already has laws against trespassing and damaging property. S.B.471 ramps up the severity of the potential charges–from misdemeanors to felonies–and greatly increases the penalties. Although the bill contains a recitation that it is not intended to apply to “constitutionally-protected activities” (a provision added to mollify opponents of the measure), the question from the Sierra Club officer illustrates the chilling effect.

If one or two people at a protest inflict damage that was unintended and unforeseen by others, those others–including not-for-profits and civic organizations–run the risk of being hit with enormous fines. Of course they would “think long and hard.” That’s the whole point.

I am aware of no evidence that existing measures against trespass and property damage are inadequate or ineffective. But unnecessary and chilling as it may be, S.B. 471 is apparently moving “under the radar” toward passage.

This is how it’s done by the big “players” who understand how the system works.

While public attention and media coverage (such as it is) are focused on high-profile measures like bias crimes and teachers pay, troubling laws get a pass–in both senses of that word.

 

 

25 thoughts on “Under Cover Of Jargon

  1. In Republican “control the population at all costs” fashion one can see where this law will go if allowed to pass into law. Next year, or the year after, a small amendment to some routine and obscure bill will expand on the list of entities that are covered by such legislation. The expansion will include pharmaceutical companies, mining/farming operations, banking and investment firms for starters and eventually include any and all commercial and manufacturing facilities.
    Here it comes, Folks!

  2. This bill frightens me to no end. Isn’t Indiana embarrassingly backward enough in its lack of care for the earth and its many-exampled failure to prevent more damage in no-ultimate-win situations.

  3. LARGE story in the local paper (Star) about abortion laws (again)
    but nothing about this story
    Hmmmmmm

  4. This bill distresses me to no end. Isn’t Indiana backward enough in not legislating the furtherance of its citizens’ health without expediting its corpoationist causes by punishing, punishing, punishing? I am most grateful for the incessant activism of Sierra Hoosiers, but where is the voice and energy of ACLU in Indiana?

  5. My first question about this bill is with the use of the term “near”; if not on the actual property, how is it trespass, mischief or a violation of any law?

    Due to Trump removing many protective regulations (one of his brags in the SOTU) which have negative effects on the nation, means fewer government employees to protect the remaining regulations; but, as Theresa said regarding Republican “control of the population at all costs” he will need more government employees to accomplish this. Unless he intends to use our military for physical “control of the population” as he is using it at the southern border as a fear tactic to get his wall. Isn’t that Martial Law and what are the regulatory requirements to call for this…or is it lost in “Under Cover Of Jargon” included in the powers of the Executive Division? Will the corporations included need to increase their security forces or will they have the state of Indiana have National Guard at their disposal to uphold Senate Bill 471 should it be enacted.
    Or to uphold any current bill for “control of the population at all costs” at local rallies, marches and protests? All roads lead to Trump’s administration; especially those included in Senate Bill 471 concerning our power sources, communications and public transportation.

    “While public attention and media coverage (such as it is) are focused on high-profile measures like bias crimes and teachers pay, troubling laws get a pass–in both senses of that word.”

    This devious action has always been in place; but it is never more dangerous than at this time under Republican Rule with Trump, Pence, McConnell and SCOTUS waiting to uphold that “control of the population”.

  6. They did the same thing for CAFOs several years ago. Journalists would pretend to be employees and sneak onto the facilities to film the animal abuse and then post on YouTube. ALEC put together their usual boilerplate laws which were immediately passed in owned states like Indiana.

    Now, if you complete a job application for fraudulent means or sneak onto private property to film the animal abuse and illegal dumping of manure into our waterways, you are considered an eco-terrorist, punishable under the same terrorist penalties.

    Trump’s decrying of socialism says it all to me…we are an authoritarian state in reality but our corporate owned media shines up the image for the world to see.

    If we are truly a democracy, wouldn’t the people decide via the vote on what kind of country we want to be?

    And the coordinated applause by Republicans and Democrats?

    They’ve already sold out this country to the billionaire capitalists who dictate what policies they want and need. It’s obstruction at the highest level and it’s authoritarian. They are preparing for the counter-revolution because they know the people will not tolerate for much longer.

  7. So how does one register an effective protest to this diminution of First Amendment rights? Who is sponsoring this legislation?

  8. Here is a link to the vote taken on January 29, 2019. We could all call the offices of these Senators and voice our disagreement. We could also ask our friends on facebook to contact the senators to request that this bill not be passed.

    http://iga.in.gov/legislative/2019/bills/senate/471#document-d44512e3

    Here is the link to the latest version of the bill. It actually includes agriculture facilities along with power facilities.

    http://iga.in.gov/legislative/2019/bills/senate/471#document-7027f6d0

  9. What about the right to peaceably assemble, granted in the First Amendment? Who determines what constitutes “critical infrastructure”?

  10. How do you protest if in doing so they can make claims you harmed their facility? You would have to document all of your activities to make sure an outsider or “unofficial protester” became emotionally involved and went beyond your protest rules. Yes these facilities do need to be protected from harm, but you have to wonder who’s real interest is being protected the companies or that the general welfare of the public.

  11. What level of felony is committed when these pipelines rupture (knowingly) and pollute the earth and water? Who goes to jail then and for how long?

  12. Todd is, unfortunately, right.

    All of these pieces of legislation and their respective usefulness, depends on ALEC’s turgid national agenda. My question is whether or not those that serve in both the Indiana State Senate and the General Assembly can actually read and write without ALEC’s help. They used to be able to do that but I really wonder now given all the non-ALEC drafted bills that have been offered up that are essentially worthless and often where their passage is problematic even in the hands of the majority party that ALEC directs.

    The best thing that could happen would be that ALEC’s HQ in Virginia is bulldozed and their staff scattered by the four winds and once again legislative bodies across the Nation rise and fall in regard to their composition and output on their own merits.

  13. ALEC is a corporate bill mill. It is not just a lobby or a front group; it is much more powerful than that. Through ALEC, corporations hand state legislators their wishlists to benefit their bottom line. Corporations fund almost all of ALEC’s operations. They pay for a seat on ALEC task forces where corporate lobbyists and special interest reps vote with elected officials to approve “model” bills.

    This is a partial list of Indiana politicians that are known to be involved in, or previously involved in, the American Legislative Exchange Council (ALEC).

    Sen. Eric Koch (R-44), Sen. Michael Crider (R-28)
    https://www.sourcewatch.org/index.php/Indiana_ALEC_Politicians
    ==============================================================
    Guess who are the Authors of Senate Bill 471??? Time is up. The answer is Sen. Eric Koch and Sen. Michael Crider.

    Environmentalists have been for over decade labeled Eco-Terrorists by the Right Wing Media. The fossil fuel industry had to ramp the laws to protect themselves. When the Native Americans began protesting in the Dakota’s against the pipelines the full weight of the Organs of State Security were assembled against them, including mercenary private security companies.

  14. Frightening, indeed. Gee, it doesn’t seem to address potential cyber attacks by Russians on such entities.

  15. It matters not if Indiana has environmental laws written by Robert Redford and the NRDC if the state can jail and bankrupt environmentalists, and we are not only talking of environmentalists here. What group is next to be charged with (in effect) terrorism who have the brazen effrontery to flesh out their constitutional rights of freedom of peaceful assembly? Banks? (See Wells Fargo and JP Morgan Chase with their mortgage fraud and the latter for bribery in China under the Foreign Corrupt Practices Act.) Coal mines? Breath the air and shut up? This is democracy?

    Perhaps it’s nearing the time for a figurative storming of the political Bastille and the introduction of laws against laws such as the atrocity Sheila has cited today. This bill is nothing more than an expansion of Citizens United extended into new territory, from corporations are people etc. into thou shalt not peacefully assemble and protest, and speaking of assembly, there should be a million Hoosiers in downtown Indianapolis to protest this ALEC-promoted violation of their constitutional rights. It appears now that corporations are “people” that they can band together under ALEC and other such interest groups and take away the rights of the rest of us, but I do not hear of their trespass against the common weal with their noise, trucks, pollution etc., so where is there any countervailing relief for the rest of us? GRRRRR!

  16. There were times when the job of the Federal Government was to protect we the people from, among other things, corporations. Then we discovered that what the founders meant is that corporations are people. Now ALEC tells us that the job of the Federal Government is to protect corporations from, among other things, we the people.

  17. I consider failure to maintain critical infrastructure in order to free public monies to pour into the pockets of the wealthy to be “critical infrastructure facility mischief.” I can see where changing a phrase or two in this bill might just put an end to potholes, crumbling bridges, rancid water…goodness, the possibilities.

  18. One of those committee Senators that voted “yes” is Jim Merritt, currently running for the Republican nomination for Mayor of Indianapolis. If that doesn’t give you a chill, please think about what his mindset would be about any gatherings of protest in the state capital (Eli Lilly or Dow Agrosciences, for example) on which this law could impact.
    The bill was written and filed by Sen. Koch (R -Dist 44). He represents an area of the state with timber interests that could also be impacted by protests against clear-cutting, for example.

    The Republican super-majority has insidiously moved to consolidate power not only for themselves but for the corporations that fund their campaigns. Please press your legislators to vote for SB 91 and SB 105, both relevant to redistricting reform. Sen. John Ruckelshaus (R- Dist 30) is the co-sponsor of SB 91.

  19. Easy fixes for bad legislation: (1) Don’t pass it, or (2) VERY narrowly define “conspiracy” to include ONLY actions that further a specific illegal act. Merely talking to Charles Manson should not obligate one to answer vicariously for the Tate murders. Another possible question, however, is this: Why does critical infrastructure merit special attention? The gravity of the attack or the societal importance of the facility could be reflected in the sentence. Laws already on the books forbid vandalism. I think people who vandalize my mailbox should be sentenced to a mandatory 5 years in the Lake County Jail. Does that mean I am entitled to a special law protecting my “critical postal receiving unit”?

  20. The Koch brothers (major movers of the ALEC group that proposes ‘model’ legislation for states to adopt) have earned billions from oil and chemical companies. Their pipelines have been cited numerous times for spills which threatened water supplies. But one could understand their nervousness about demonstrations calling attention to polluting without penalty to enhance profits.

  21. Corporations used to be considers legal entities that existed at the sufferance of the state. With ALEC, the state is a legal entity that exists at the sufferance of the corporations.

    Mike S. – Are you kidding? The only thing I wonder is why they didn’t specifically add a section that says nothing in this bill shall be construed as to protecting the property of any organization supporting immigrants, LGBTQ people, reproductive rights, minority rights, nor anyone not pledging allegiance to Ayn Rand, ALEC, and/or the Koch brothers. Then again, we know that is an unwritten part of the bill understood by all.

    Thanks for pointing this one out, Sheila. I would have totally missed it.

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