UPDATE: Gov. Doug Burgum signed Senate Bill 2044 into law.
This bill amends and reenacts part of the North Dakota Century Code which relates to tampering with or damaging a critical infrastructure facility or a public service and to provide a penalty.
The ACLU of North Dakota opposes this bill. Senate Bill 2044 punishes association, and will almost certainly stifle protected speech. It would criminalize activity far beyond the intentional causing of property damage, extending penalties to activity such as “interfering with” or “inhibiting” the operations of critical infrastructure, terms so vague as to be nearly meaningless and criminal penalties may be imposed without evidence of any intent at all. This is unconstitutional.
Additionally, SB 2044 would punish organizations “found to be a conspirator” with those individuals found to be in violation of the new prohibitions ten times over, a provision aimed squarely at punishing associational activities. Making an organization criminally liable for all damage would impermissibly burden the rights of political association that are protected by the First Amendment – the literal embodiment of guilt by association.
At best, this bill is entirely unnecessary. At worst, it is meant to chill speech. Existing law already prohibits trespass and malicious destruction of property and conspiracies to commit the same. Given that, this bill’s focus on critical infrastructure facilities belies its neutral purpose – as do its excessive fines. A person cannot lawfully be prosecuted for using truthful information to sway public opinion.