Friday, April 17, 2015

S 902 Introduced – CI Trespassing

Last month Sen. Schumer (D,NY) introduced S 902, a bill that would make it a federal offense to trespass on critical infrastructure. This bill is identical to S 2934 that was introduced near the end of the last session without any action. In press release last November Schumer made it clear that it was targeting people who trespassed on New York bridges as publicity stunts or climbed the World Trade Center.

The bill would amend 18 USC Chapter 65, Malicious Mischief, by adding §1370. It uses a fairly conventional definition of ‘critical infrastructure’ and specifically adds ‘landmarks, structures and other objects’ declared to be a national monument {§1370(a)(2)}.

The bill would then make it a federal offense to “knowingly go on any critical infrastructure used in or affecting interstate commerce, with intent to commit a criminal offense” {§1370(b)}. Violation of this new section would be punishable by fines (limit not specifically set) and/or imprisonment for not more than five years.

Senator Schumer is a mover and shaker in the Senate and may have the pull to try to get this considered. I would not expect much opposition form many Republicans, who tend to be law and order types. Most of the opposition would be from Democrats concerned about stifling free speech.


The simple act of trespass has a long history in the United States as being a component of free speech and political expression. A group of like-minded activists would move from a public space into a fringe area of a private space, or interfere with movement in a public space to attract the attention of the news media. Speeches would be made and the police would move in to break up the demonstration by arresting the participants for trespass. Since this is normally a misdemeanor, the protestors would be back on the street shortly and would return to their day jobs.

Allowing this type of simple political expression to be turned into a federal offense would severely inhibit this form of protest.

Having said that, there are certainly other forms of trespass on critical infrastructure facilities that are not mere political statements, but precursors for taking more violent action against those facilities. Most terrorist attacks are preceded by some form of physical surveillance. When that surveillance takes the form of trespass on the facility it would certainly be nice to have some federal statute to prosecute that form of trespass under instead of a typical misdemeanor trespass charge.

But then again, I don’t know how you would word the statute so as to allow non-violent political statements to be excluded and still deal with those suspected of planning some sort of violent attack. Unfortunately, this bill does not even attempt to make the distinction since it is specifically targeting protestors that would hang a Palestinian flag from the Brooklyn Bridge not violent terrorists.

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