Jump to content

Legal Question


Recommended Posts

I know that there are some lawyers in our ranks. I am hoping to get a comment from some of you concerning the legality of publishing coordinates to sensitive sites.

 

In Colorado, some cavers are threatening to use a provision in the Federal Cave Resource Protection Act to prosecute some geocachers who have published coordinates to some sensitive caves on geocaching.com and on their own website. The FCRPA states that: "Information concerning the specific location of any significant cave may not be made available to the public under section 552 of title 5, United States Code, unless the Secretary determines that disclosure of such information would further the purposes of this Act and would not create a substantial risk of harm, theft, or destruction of such cave.

 

I am wondering if publishing the location of a cave or other sensitive site is protected free speech. Is there a first amendmendment issue here? What about other potentially sensitive sites such as the private homes of celebrities, archaelogical sites, missile silos, etc. I'm not talking about hiding a cache in these places or trespassing. I'm only asking if it could be illegal just to publish the coordinates.

 

Could geocaching.com be prosecuted?

 

Please don't turn this into another cavers vs. cachers thread. I was just using this as an example.

 

Johnny

Link to comment

Though not an attorney, I spent 29+ years in resource enforcement. In my reading of this law, it would be a valid law and upheld in court. The courts would balance the definitions, goals, and limits within the law, against the individuals right of free speech. Courts have placed limits on free speech such as the classic yelling fire in a crowded location and government "top secrets".

 

This law was passed in 1988. It requires specific actions to be taken by the government to designate significant caves. Specific findings have to be made that certain resources are found in the cave which could be harmed. If these these are all found, the cave can be listed as significant. From what I could find the prosecution of these cases are handle via administrative civil penalities.

 

I would guess that for a person to claim a free speech right here, they would have to show the cave was improperly determined to be significant; the act itself was overbroad or unnecessary in its stated goals; or that they would suffer some harm by this limit on their free speech. Since this was passed in 1988, and I found ongoing code of regulations updates, an individual would have a hard time defending themselve on free speech grounds.

 

The big problem: how to determine if a cave has been designated significant. It appears both the Departments of Interior and Agiculture don't maintain master lists. In the case of Agriculture, I find a regulation which says each National Forest is to maintain its own list. It appears a person would have to contact the Federal agency responsible for the land the cave is on and ask.

Link to comment

I am no lawyer and am not about to risk publishing on the Internet the location of any cave. But I read the FEDERAL CAVE RESOURCES PROTECTION ACT OF 1988 which says

quote:
IN GENERAL.—Information concerning the specific location of any significant cave may not be made available to the public under section 552 of title 5, United States Code, unless the Secretary determines that disclosure of such information would further the purposes of this Act and would not create a substantial risk of harm, theft, or destruction of such cave.
The critical part is the section 552 of title 5, United States Code. That is the Freedom of Information Act. I take this to mean if I requested information about significant caves claiming that I had the right under the Freedom of Information Act, then any government employee can say this act gives them the right to say no. I don't see how it applies to someone not working for the government.

 

Now there is a list of things nobody can do such as destroy or harm things in the cave, but nothing about the general public not making the information public.

 

But again I am not going to risk it.

Link to comment

Excellent post AllenLacy.

 

I haven't read the entire Federal Cave Resources Protection Act of 1988, but the parts cited thus far in these forums don't convince me that it is a crime for the average Joe to post cave coordinates on the web.

 

Are there any other arguments out there?

 

Pan

 

Fact is that there is nothing out there you can't do,

Yeah, even Santa Claus believes in you...

Floyd of Dr. Teeth and the Electric Mayhem, from "Can You Picture That?"

Link to comment

quote:
Originally posted by Pantalaimon:

I haven't read the entire Federal Cave Resources Protection Act of 1988, but the parts cited thus far in these forums don't convince me that it is a crime for the average Joe to post cave coordinates on the web.

 

Are there any other arguments out there?


 

The information is considered confidential. Publishing confidential information can get you in all sorts of legal tangles. After all, it isn't your information to publish.

 

George

Link to comment

quote:
Originally posted by nincehelser:

The information is considered confidential. Publishing confidential information can get you in all sorts of legal tangles. After all, it isn't your information to publish.

George


 

Considered confidential to who? In trouble with who?

 

My question is whether it is illegal to publish such information on the web, or anywhere else for that matter. The Federal Cave Resource Protection Act does not seem to apply, at least so far as it has been discussed in the forums I've read.

 

Nincehelser, you yourself said in another thread that folks could be in violation of federal law for posting such coordinates on the web. I'm curious what federal law you claim they are violating.

 

Pan

 

Fact is that there is nothing out there you can't do,

Yeah, even Santa Claus believes in you...

Floyd of Dr. Teeth and the Electric Mayhem, from "Can You Picture That?"

Link to comment

quote:
Originally posted by Pantalaimon:

 

Considered confidential to who? In trouble with who?


 

Whoever declares it confindential. It could be a private individual, corporation, or government. If you read the act it is clear the government has put a confidential claim on this information.

 

quote:

My question is whether it is illegal to publish such information on the web, or anywhere else for that matter. The Federal Cave Resource Protection Act does not seem to apply, at least so far as it has been discussed in the forums I've read.


 

I wouldn't take anything in these forums as any sort of legal advice. The people involved really need to consult their own lawyers and work this out among themselves.

 

quote:
Nincehelser, you yourself said in another thread that folks could be in violation of federal law for posting such coordinates on the web. I'm curious what federal law you claim they are violating.

 

I'm glad that you noted that I said "could be". I really don't know how this is all going to turn out. I do think it is possible that they are in violation of a federal law based on my reading of the act, but I can't say for sure. Lawyer's can't even say for sure. That's what the courts have to decide.

 

George

Link to comment

After reading the entire act I believe the cavers are misinterpreting the law. As Allenlacy pointed out, when you read the oft cited prohibition of making the locations available to the public, the context is clearly aimed at a federal agency releasing the information under a FOIA request. This portion of the act basically just exempts the government agencies (Dept of Interior / Agriculture) from having to comply with the FOIA unless the agency decided it could release the information with out increasing the risk to the cave.

 

If the intent of the legislature had been to prohibit private individuals from disclosing locations personally known to them they would have addressed it in Section 7 PROHIBITED ACTS AND CRIMINAL PENALTIES. They didn’t.

 

Getting back to the original post, I wouldn’t worry about a group of cavers. If what the individuals were doing was actually a violation of the act the government would be the party pursuing the individuals. If I was being harassed in this way, I think the first thing I would do is send a letter to someone at the regional or district level of the agency, maybe even try and find a legal or enforcement official. I would not bother dealing with someone on the level of a ranger or such. I would explain what I was doing, what the cavers were doing, and ask them if your actions are a violation of the act. I wouldn’t try and argue any point with them, just request clarification. I would keep all correspondence in writing.

 

If the agency came back with a notice that I was violating the law, I would stop or decide that the issue is worth pursuing through the courts. If they respond that my actions were legal I would be sure to cc that over to the cavers. Issue settled.

Link to comment

quote:
Originally posted by Whidbey Walk:

After reading the entire act I believe the cavers are misinterpreting the law. As Allenlacy pointed out, when you read the oft cited prohibition of making the locations available to the public, the context is clearly aimed at a federal agency releasing the information under a FOIA request. This portion of the act basically just exempts the government agencies (Dept of Interior / Agriculture) from having to comply with the FOIA unless the agency decided it could release the information with out increasing the risk to the cave.


 

Perhaps that's one way of interpreting it, but I think this is a more of a tool to mark the information confidential rather than allowing it to be in the public domain. What would be the point of prohibiting an agency from publishing such information, but then also saying it can release it if it wants to?

 

If you read further down, it talks about when the information can be disclosed to certain parties, but it has provisions that those parties must agree to maintain the confidentiality of the information...so it seems the confidentiality issue extends beyond just the government agency itself.

 

quote:
If the intent of the legislature had been to prohibit private individuals from disclosing locations personally known to them they would have addressed it in Section 7 PROHIBITED ACTS AND CRIMINAL PENALTIES. They didn’t.

 

Not in so many words. It would be great if lawyers worded things clearly and in plain language, but that isn't aways the case. If you read in that section, it prohibits anyone from "disturbing" the environment. It also says anyone who "counsels" with any other person violating the cave is also subject to punishment. Obviously, there could be some debate over the definitions of "disturbing" and "counsels". "Disturbing" could might mean waking protected wildlife (e.g. bats) at the wrong time in their hibernation cycle resulting in their death. "Counseling" could also be taken as telling people the location of these sensitive areas, such as publishing the locations on a web site.

 

quote:
Getting back to the original post, I wouldn’t worry about a group of cavers. If what the individuals were doing was actually a violation of the act the government would be the party pursuing the individuals.

 

True. I don't know if it has gotten to this point yet, but I believe the government would be the ones doing the actual prosecuting. However, individuals may be petitioning the government to take some action.

 

quote:
If I was being harassed in this way, I think the first thing I would do is send a letter to someone at the regional or district level of the agency, maybe even try and find a legal or enforcement official. I would not bother dealing with someone on the level of a ranger or such. I would explain what I was doing, what the cavers were doing, and ask them if your actions are a violation of the act. I wouldn’t try and argue any point with them, just request clarification. I would keep all correspondence in writing.

 

I don't think anyone is being "harassed" in this case, but I agree with the gist of what you're saying. Both sides will probably have to consult lawyers, work something out, or eventualy take it to court and have a judge decide.

 

quote:
If the agency came back with a notice that I was violating the law, I would stop or decide that the issue is worth pursuing through the courts. If they respond that my actions were legal I would be sure to cc that over to the cavers. Issue settled.

 

Personally, I can't see why some people insist on challening this law. Perhaps they could overturn it, but not without spending a lot of money and time. There are other options than publishing the actual coordinates of a cave...like an offset cache. I don't think that's really in the spirit of cave conservation, but it does seem to side-step some possible legal issues.

 

George

Link to comment

quote:
Personally, I can't see why some people insist on challening this law. Perhaps they could overturn it, but not without spending a lot of money and time.

 

I view it differently. I can’t see why some people insist on taking actions that could have a negative effect on these caves. As far as the law goes, if the view is that the law does not prohibit the disclosure of the information by a private individual, then they aren’t challenging the law.

Link to comment

Could this be like someone publishing info about nuclear fusion that might be classified by the government in their papers but the info had been gotten from non-classified sources? Is this nuclear person guilty of something? Would this case be similar to the cave one?

 

alan

Link to comment

quote:
Originally posted by Renegade Knight:

Per the law as I read it.

 

1) The feds have to declair it's sensative.

2) The feds have to notify you becuse you won't know going in if it's sensative.

3) After they notify you if you do not comply then they may have a case.

 

While the intent to protect is clear the law is rather loose.


 

You forgot:

2a) Fed employee is in trouble for releasing the info that you weren't supposed to know.

 

______________________

Just because I don't care doesn't mean I don't understand. - Homer Simpson

ChiTown Cachers * Keenpeople.com Stats

Link to comment

quote:
Originally posted by Renegade Knight:

quote:
Originally posted by Stunod:

...You forgot:

2a) Fed employee is in trouble for releasing the info that you weren't supposed to know...


 

Good one. Must be a loophole.


 

Not really. No one in particular is forbidden from having the information, it just isn't allowed to be be made public. If a federal employee tells you that you're violating a sensitive site, that's going to be a private communication, not a public one.

 

George

Link to comment

This is simply a reference to the freedom of information act, covering government agencies. It specifically states they aren't to release the locations, unless approved. It doesn't in any way shape or form apply to the general public. Actions the public can be prosecuted for are also spelled out in the act. Giving cave locations out isn't one of them. By the way, ask the cavers how they acquired the cave location? Would appear they are in violation of the law they are deliberately misrepresenting, or at least they would be if it said what they claim it says....

 

By the way, archeological sites are covered by virtually the same rules under the Antiquities Act.

 

Not a lawyer, but I have had training on the freedom of information act, amongst others.

Link to comment

I see this as an opportunity whether than a problem. People who made threats of prosecution, are just helping to educate others.

 

The underlining purpose of the Act is "to secure, protect, and perserve significant caves...for the perpetual use, enjoyment, and benefit of all people" (section 4301).

 

Section 4301 also states the acts purpose is to foster increased cooperation and info exchange between the government and the users. Section 4303 requires "consultation with appropriate private sector interests, including cavers." While cavers get special mention, geocachers would be another of these appropriate private sector interests.

 

Whether than argue with another user group, go directly to the agency and consult. If there are conflicts, it is the agency who has to manage the issue. The agency is going to tell you what regulations they would apply. Or you could help work out new management options.

 

This is another chance to demonstrate cachers concern for responsible use.

Link to comment

I tend to agree with AllenLacy about paragraph 5 pertaining to the FOI Act and being meant for goverment employees/agencies. However paragraph 7 the penalties obviously applies to anyone not having permission to be there. In particular it mentions anyone that "disturbs" the protected cave also anyone who "counsels" someone to do so. Those are both broad terms but putting a cache there and telling people to go there to get it could get you into some hot water. That would be actively encouraging someone to go there, which is far different than just letting the location be known.

 

Remember, wherever you go- there you are!

Link to comment

Legal Disclaimer: I graduated from law school, but have not taken the bar exam, hence, not bar admitted. This should not be taken as legal advice.

 

I just did a cursory reading of the law. I have not read the regulations. The law specifically prohibits the government from disclosing which caves are protected, unless disclosure will help further the law. Once an individual becomes aware that a particular cave is protected (whether through information from the government or other sources) they are legally required to protect the cave. That means, if they know that the cave falls under these provisions that they are required to follow the law. Hence, if you know the cave is protected and you disturb the cave you can be prosecuted under the law.

 

Cavers are specifically referenced under the law. Environmental organizations have previously been given the right to sue (as if they are the government; in this case, cavers) to stop destruction of a preserved habitat because their constituency (members) will be harmed by the actions of others.

 

Basically, if you know that the cave is protected and you 'disturb' it, then you are breaking the law. But, if you don't know that the cave is protected, then you are not breaking the law. The question will ultimately come down to whether you knew that the cave was protected prior to entering it and whether you 'disturbed' the cave by entering it. The court will decide what the definition of 'disturbed' is.

 

-gt

 

-Stroh

 

-Technology...I have no idea what I would do without my GPSr, my TiVo, or my Computer with a broadband connection. I guess I would spend more time with my wife! icon_smile.gif

Link to comment

Thank you Quest Master for starting this topic. It has made for some interesting reading. I had a question about a post by Green Toad.

 

quote:

Basically, if you know that the cave is protected and you 'disturb' it, then you are breaking the law. But, if you don't know that the cave is protected, then you are not breaking the law.

 

I know some of the caves on this web site are on the list of caves to be nominated as significant, Wait let me re-phrase that. I have been told by cavers that some of the caves on this site are on the list to be nominated as significant. Does that mean I know I am in violation of a law and therfore, I am guilty. Or Did they lie to protect the caves. Should I take their word for it or not? Should I only take the word of government oficials on this?

 

Thanks for all the free legal advice. I will treat it as such, but it's nice to get some opinons.

Link to comment

There's a very similar provision for archaeological sites. It does not apply to individuals and it has nothing to do with Freedon of Speech; it's merely setting exemptions to the Freedom of Information Act.

 

The result is you can't request government records that show the exact location of these types of sites. That's it.

 

There would be no legal reason why private persons couldn't give the locations on websites, books, etc.

 

At the same time, GeoCaching rules are in place to protect fragile locations. No caches may be placed near archaeological sites, for instance. The same rule should be extended to fragile or vulnerable natural sites.

 

Best Wishes,

-Bob

Link to comment

Join the conversation

You can post now and register later. If you have an account, sign in now to post with your account.
Note: Your post will require moderator approval before it will be visible.

Guest
Reply to this topic...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.

Loading...
×
×
  • Create New...