Collection of Information:

Ag-Gag Law:

“No person without the effective consent of the owner may. . .

3. Enter an animal facility, not then open to the public, with intent to commit an act prohibited by this section.

4. Enter an animal facility and remain concealed with intent to commit an act prohibited by this section.

5. Enter an animal facility and commit or attempt to commit an act prohibited by this section.”

6. Enter an animal facility and use or attempt to use a camera, video recorder,

or any other video or audio recording equipment.” N.D. Cent. Code § 12.1-21.1-02.

“A person who violates subsections 2 through 5 or 7 of section 12.1-21.1-02 is guilty of a class C felony. A person who violates subsection 6 of section 12.1-21.1-02 is guilty of a class B misdemeanor.” Id. § 12.1-21.1-04.

Private parties can recover treble damages in a civil suit for violations of subsections (5) or (6) above.  Id. § 12.1-21.1-05.

Drone Law:

See infra “Drone Laws.”

Trespass Laws:

Criminal Liability for Trespass Despite Lack of Notice:

No.  Entry upon property only constitutes criminal trespass if the property is “so enclosed as to manifestly exclude intruders,” N.D. Cent. Code § 12.1-22-03(2)(b), if “notice against trespass is given by . . . posting in a manner reasonably likely to come to the attention of intruders, ” id. § 12.1-22-03(3)(a), or if “the individual enters or remains in any place as to which notice against trespass is given by actual communication to the actor by the individual in charge of the premises or other authorized individual, ” id.

Other Provisions:

See supra “Ag-Gag Law.”

See infra “Drone Laws.”

Drone Laws: 

Surveillance Law:

“This chapter prohibits any use of an unmanned aerial vehicle for:

a. Domestic use in private surveillance. A law enforcement agency may not authorize the use of, including granting a permit to use, an unmanned aerial vehicle to permit any private person to conduct surveillance on any other private person without the express, informed consent of that other person or the owner of any real property on which that other private person is present.

b. Surveillance of the lawful exercise of constitutional rights, unless the surveillance is otherwise allowed under this chapter.” N.D. Cent. Code § 29-29.4-05(2).

Exception:

“Exceptions.  This Act does not prohibit any use of an unmanned aerial vehicle for surveillance during the course of …(4) Research, education, training, testing, or development efforts undertaken by or in conjunction with a school or institution of higher education within the state and its political subdivisions, nor to public and private collaborators engaged in mutually supported efforts involving research, education, training, testing, or development related to unmanned aerial vehicle systems or unmanned aerial vehicle system technologies and potential applications.”  N.D. Cent. Code § 29-29.4-04.

Wildlife Management Areas:

“A person may not operate a drone or any radio-controlled aircraft while on any state wildlife management area unless authorized by the director or the director’s designee.” N.D. Admin. Code 30-04-02-22(1).

Stalking Laws:

Criminal Law:

 “1. As used in this section:

a. ‘Course of conduct’ means a pattern of conduct consisting of two or more acts evidencing a continuity of purpose.  The term does not include constitutionally protected activity.

b. ‘Immediate family’ means a spouse, parent, child, or sibling.  The term also includes any other individual who regularly resides in the household or who within the prior six months regularly resided in the household.

c. ‘Stalk’ means:

(1) To engage in an intentional course of conduct directed at a specific person which frightens, intimidates, or harasses that person and which serves no legitimate purpose.  The course of conduct may be directed toward that person or a member of that person’s immediate family and must cause a reasonable person to experience fear, intimidation, or harassment; or

(2) The unauthorized tracking of the person’s movements or location through the use of a global positioning system or other electronic means that would cause a reasonable person to be frightened, intimidated, or harassed and which serves no legitimate purpose.

2. A person may not intentionally stalk another person.”  N.D. Cent. Code § 12.1-17-07.1.

Use of Information:

Although our research is incomplete, these provisions address the use of information collected by citizens.

Explicitly Allows:

“[A]ny credible evidence may be used for the purpose of establishing whether a person has violated or is in violation of this article[,]” which regulates air pollution.  N.D. Admin. Code § 33-15-01-17(2). 

Prohibitive by Effect:

Evidence is presumed to be credible it if is collected in accordance with “any procedures and methods promulgated pursuant to sections 504(b) or 114(a)(3) of the Federal Clean Air Act.”  N.D. Admin. Code § 33-15-14-06.

Explicitly Prohibits:

“1. Information obtained from an unmanned aerial vehicle is not admissible in a prosecution or proceeding within the state unless the information was obtained: 

a. Pursuant to the authority of a search warrant; or 

b. In accordance with exceptions to the warrant requirement. 

2. Information obtained from the operation of an unmanned aerial vehicle may not be used in an affidavit of probable cause in an effort to obtain a search warrant, unless the information was obtained under the circumstances described in subdivision a or b of subsection 1 or was obtained through the monitoring of public lands or international borders.”  N.D. Cent. Code § 29-29.4-02.

Evidentiary Standards:

Pleading a Claim:

Requires certification that “the factual contentions have evidentiary support or will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.”  N.D. R. Civ. P. 11(b)(3).

Authentication or Chain of Custody:

“To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.”  N.D. R. Evid. 901(a).

Expert Testimony:

“A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.”  N.D. R. Evid. 702; see also State v. Hernandez, 707 N.W. 2d 449, 453–454 (N.D. 2005) (“This Court has never explicitly adopted Daubert and Kumho Tire…. Under North Dakota law, the admission of expert testimony is governed by N.D.R.Ev. 702.”).