Bill Description: House Bill 167 would establish a new crime of "critical infrastructure trespass," even though existing trespass law is sufficient.

Rating: -4

NOTE: House Bill 167 is very similar to House Bill 147, introduced earlier this session. The rating and analysis of this bill have been updated since its initial publication based on information provided during its committee hearing.

Does it directly or indirectly create or increase penalties for victimless crimes or non-restorative penalties for nonviolent crimes? Conversely, does it eliminate or decrease penalties for victimless crimes or non-restorative penalties for non-violent crimes?

House Bill 167 would create Section 18-7045, Idaho Code, to establish a new crime of "critical infrastructure trespass," with enhanced penalties, even though Idaho already has laws against trespassing. 

The bill says "critical infrastructure trespass" occurs when a "person knowingly and willfully enters or remains in a critical infrastructure facility or a construction site of a critical infrastructure facility without permission of the owner of the property or after notice is given to depart or not to trespass."

The bill says that notice can be given in several ways, including the spoken word. In addition, the bill says notice can be given by "posting of signs reasonably likely to come to the attention of intruders" or "the presence of fencing or other physical barrier designed to exclude intruders."

The bill does not specify what kinds of signs would fall under this definition, nor does it limit the application to clear "no trespassing" signs. Under the provisions of this bill, it appears that someone entering a facility or property deemed "critical infrastructure" without following instructional signs such as those saying "no guns" or "masks required" could be considered guilty of "critical infrastructure trespass" even if the person was never asked to leave.

Failure to comply with an instructional sign — particularly when its instructions may violate individual rights or freedoms — should not be criminalized.

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Among other problems with this concept, "critical infrastructure" is defined very broadly. It includes "communications," "financial services," "food and agriculture," "government facilities, "health care and public health," and "information technology" among many others.

The penalties prescribed under this section would include up to six months of incarceration and up to $1,000 in fines for a first offense, which would be classified as a misdemeanor. A second offense within five years would be classified as a felony and carry a penalty of up to ten years in prison and up to $10,000 in fines. 

A fine of up to $100,000 may also be levied against "an individual or organization that aids, abets, solicits, compensates, hires, conspires with, commands, or procures a person to commit the crime of critical infrastructure trespass." 

House Bill 167 additionally establishes that "a critical infrastructure facility may maintain a civil action against an individual or organization for damages suffered as a consequence of a violation of this subsection, including damages for lost profits, whether or not any fine is imposed pursuant to this subsection."

It appears that this bill is intended to expand the definitions and penalties associated with trespassing to grant special and enhanced protections to a host of government and quasi-governmental facilities (such as hospitals and public health districts) that have been targeted by protesters in recent years over egregious violations of individuals’ rights.

Consider as an example a private citizen who wrote an email or social media post encouraging people to protest at a hospital where a child kidnapped by government agents was being kept away from the child's parents. If the protesters were charged with trespassing, the person who wrote the email or social media post could be fined $100,000. 

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Does it violate the principle of equal protection under the law? Examples include laws which discriminate or differentiate based on age, gender, or religion or which apply laws, regulations, rules, or penalties differently based on such characteristics. Conversely, does it restore or protect the principle of equal protection under the law?

Idaho law already prohibits trespassing. House Bill 167 would expand the definitions and penalties associated with trespassing to grant special and enhanced protections to a host of government and quasi-governmental facilities, such as hospitals and public health districts. 

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Does it violate the spirit or the letter of either the U.S. Constitution or the Idaho Constitution? Examples include restrictions on speech, public assembly, the press, privacy, private property, or firearms. Conversely, does it restore or uphold the protections guaranteed in the U.S. Constitution or the Idaho Constitution?

House Bill 167 says the new crime of "critical infrastructure trespass" would not apply if a person "is participating in a public demonstration or engaging in lawful conduct such as participating in a public demonstration to the extent that such activity is protected under the United States constitution or the constitution of the state of Idaho."

There are several problems with this language. The first is that it is meaningless. Any law that attempted to criminalize activity "protected under the United States constitution or the constitution of the state of Idaho" would already be invalid and unenforceable. 

A second problem is that this bill expands the definition of what constitutes an unlawful public demonstration or protest. It says "critical infrastructure trespass" happens when a "person knowingly and willfully enters or remains in a critical infrastructure facility ... without permission of the owner of the property or after notice is given to depart or not to trespass."

The key word here is "or," because it means a notice to depart is not required to establish grounds for trespass. Instead, simply entering one of the many facilities classified as "critical infrastructure" without permission would trigger enhanced penalties. 

Under this expanded concept of trespassing, "lawful conduct such as participating in a public demonstration" would effectively require citizens to receive permission from the facility they wish to protest.

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