Passive problem

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We've been highly skeptical, in general, of usage mavens' often-mistaken disdain for what they call "passive voice". The objects of their animus are often not grammatically passive at all, but merely vague about agency — or sometimes just weakly phrased in some not-very-clear way.

But Jerry Friedman points out a case where vagueness about agency poses real-world problems — and here it really is a passive-voice construction that is at fault.

As Jerry explains,

Wyoming recently passed a law prohibiting people from "collecting resource data" on land, and from entering land for the purpose of collecting such data, unless they have the owner's permission or certain other authorizations to collect the data. The prohibition applies even if the person is otherwise allowed to enter the land.

The text of the law is here. It's apparently meant to protect ranchers against exposure for E. coli introduced into streams by the feces of grazing cattle, as explained here and here.  But the law as written goes way beyond criminalizing attempts to document violations of the Clean Water Act.

Justin Pidot, "Forbidden Data", Slate 5/11/2015:

Imagine visiting Yellowstone this summer. You wake up before dawn to take a picture of the sunrise over the mists emanating from Yellowstone hot springs. A thunderhead towers above the rising sun, and the picture turns out beautifully. You submit the photo to a contest sponsored by the National Weather Service. Under a statute signed into law by the Wyoming governor this spring, you have just committed a crime and could face up to one year in prison.

I'm not clear whether this activity would actually violate the law, since one clause specifies "private open land", whereas another refers to "open land" in general. But you could reframe the hypothetical violation to involve taking a picture on a road or trail that crosses private land — or for that matter just exclaiming on Facebook about the freshness of the air and the beauty of the scenery, which also technically constitutes "preserv[ing] information in any form from open land". It's a strange world where the people who pass such legislation think of themselves as defenders of liberty.

And the passive problem, as Jerry observes, adds another layer of nightmarish bureaucratic intrusion —

The statute defines "collect" in a special way [emphasis added]:

"Collect" means to take a sample of material, acquire, gather, photograph or otherwise preserve information in any form from open land which is submitted or intended to be submitted to any agency of the state or federal government;

I think this is a case where the passive construction is evasive about agency and creates an important ambiguity. If the person who collects the information doesn't submit it or intend to submit it to a government agency, but the information is submitted or intended to be submitted by someone else, did the person who collected the data break the law? (Not only do scientists publish their data, but "citizen scientists" put their observations on line in places such as eBird and BugGuide, and even photographs of scenery might qualify as "relating to land or land use".)

But it's even worse than that, it seems to me. The law is not only vague about who submits or intends to submit, but also about what it means to "submit" information in the first place. The rise of social media makes it difficult to draw a bright line between the normal activities of life and "submitting" photographs or other "information in any form" to agencies of the state or federal government.

For example, Yellowstone National Park has a Facebook page —  if you post your beautiful sunrise photo to Facebook, and the Yellowstone National Park Facebook page picks it up — or one of your hundreds of Facebook "friends" puts a link to your photo in a comment on a Yellowstone National Park post — have you violated the new Wyoming law? What your photo doesn't actually end up on any state or federal agency's page, but your photo is open to the public, or some employees of those agencies are friends or friends of friends?

If making information available to government employees on social media is a violation of the law, then the law will be violated every day, probably multiple times, by anyone involved in the modern world who lives in Wyoming or travels through it. If the answer is "no", then the law can be trivially circumvented — just go ahead and "take a sample of material, acquire, gather, photograph or otherwise preserve information in any form from open land", post it on Facebook, and let events take their course.



  1. J. W. Brewer said,

    May 13, 2015 @ 9:54 pm

    I'm not sure that Jerry Friedman's ambiguity would be a problem in practice (i.e. it seems plausible that a court would answer "intended by whom?" with "intended by the person doing the taking") but there's another oddity which may be a drafting glitch. The "unlawfully collecting" offense only occurs if the defendant "enters onto private open land and collects resource data" but the "trespassing to unlawfully collect" provision just says "Enters onto open land for the purpose of collecting resource data" without the limiting "private." But taking a photo while on publicly-owned land at Yellowstone would not seem to be a literal violation of the "unlawfully collecting" provision.

    As to submit – maybe if you post something to a facebook page maintained by a government agency that's one thing, but there are old-economy analogies to resolve other problems. If you submit your information concerning alleged water pollution to the New York Times or the Podunk Muckracker-Gazette or any other newspaper in the hope that they will publish it, it would be quite odd to say you are submitting it to the government simply because it is highly likely that the newspaper's readership includes some government employees and/or because it is foreseeable that some concerned citizen might clip the story containing your information out of the paper and mail it to their senator attached to a letter demanding that Something Be Done About The Problem.

  2. Jerry Friedman said,

    May 13, 2015 @ 11:54 pm

    J. W. Brewer: A drafting error seems possible. An earlier version of the bill says "private open land" for both offenses. Maybe the legislators forgot to delete one instance of "private".

    I should have mentioned in my summary of the law that it applies only to open land, so if you take a picture of your kids playing ball with the neighbor kids in their yard, you're all right. But Wyoming is the least densely populated state in the lower 48, and the vast majority of its vastness is open land.

    I won't argue with you about what a court is likely to do with that passive construction. But as MYL says, if it will be taken to mean "intended by the person collecting the data", doesn't that make the law unenforceable? The person can say "I just published my bacteria counts in The Journal of Western Coliforms" or "I just uploaded my picture of an algae bloom to Flickr—I never intended it to be submitted to the government."

  3. ryan said,

    May 14, 2015 @ 12:34 am

    Grammar issues all over that. If prosecuted, you might be able to argue that since the land you were documenting had neither been submitted to a governmental agency nor was intended for submission to a governmental agency, the prohibition didn't apply.

  4. peter said,

    May 14, 2015 @ 12:48 am

    It is interesting that we say "take a photo", rather than "make" or "create a photo". The verb "take" makes it seem there is some aspect or part of the thing being photographed which is removed from the thing in the act of photography. Perhaps the legislators who passed this law were implicitly assuming that, at least for those things and their parts the lawmakers intended to preclude from federal observation. What exactly is removed from something when it is photographed? Its soul?

    [(myl) Well, we also "take a look", "take a peek", "take a measurement", "take a reading", "take notes", etc., so the notion of appropriation is common to several sorts of information acquisition.]

  5. AndrewD said,

    May 14, 2015 @ 2:06 am

    Surely, the easiest way to defeat this law is to collect Data , write the paper and submit it to,say, The Proceedings of the Royal Society or A Canadian journal. Neither of these are State or Federal agencies but the authors and Journals can not be responsible for the journals readership.
    It has been remarked elsewhere that the Law is proberbly unconstitutional
    any way

  6. Buzz said,

    May 14, 2015 @ 7:49 am

    This law attempts to criminalize the dissemination collected information, based on the purpose for which the information is collected. This seems to conflict pretty obviously with the freedoms of speech and of the press guaranteed by the first amendment. However, even if one believed that this did not conflict with those provisions, it is still an unambiguous violation of the freedom to petition the government for a redress of grievances. That right is certainly the least mentioned of the first amendment rights, but it clearly precludes the criminalization of conveying information to the federal government in order to prompt the government to act. Communications to the government explicitly have a higher degree or protection than other acts of speech and publication under our Constitution.

  7. David Morris said,

    May 14, 2015 @ 8:58 am

    Apropos of not much, a passing cockroach was just killed by my copy of Huddleston and Pullum's 'A Student's Introduction to English Grammar'.

  8. _NL said,

    May 14, 2015 @ 9:18 am

    It has to be written vaguely because the intent is to punish radical activists who threaten established commercial interests, but you can't put into a law that you're going to arrest activists.

    So they wrote a law so broad that it covers too much activity for it to be even plausibly constitutional. But what they meant to say is "if activists try to publish material embarrassing established members of the community, we get to punish those activists." If they write a really broad "ag-gag" law, then it covers all the same activity without having to mention activists who embarrass prominent constituents. On its face, the law is broad and fair, even if the intended application is just as uneven and unfair.

  9. J. W. Brewer said,

    May 14, 2015 @ 10:09 am

    Jerry Friedman: I don't know any Wyoming legislators, but I take it the paradigm instance of what they want to discourage is environmental activists trespassing on (private?) land in hopes of obtaining evidence of environmental-law violations for the specific purpose not of increasing scientific knowledge or public awareness or even "naming and shaming" specific alleged polluters via adverse PR, but of getting the EPA or some similar governmental agency to take enforcement action once the evidence the bureaucrats weren't adequately motivated or resourced (or even permitted, if there are rules limiting when government employees can themselves go onto private property in the speculative hope of finding evidence) to find on their own is presented to them on a silver platter. The statute may be overbroad or otherwise badly drafted, and the policy goal may be controversial or ill-advised or even unconstitutional, but it's a coherent policy goal. One man's noble whistleblower is another man's low-life informer/snitch.

    One possible reason (although this is speculation on my part) for the "private" or not confusion in the wording might be that, as I understand it, lots of land out in that part of the country is formally owned by the federal government but leased to specific ranchers who have the right to graze their cattle on it. Is that public or private land? May depend on who you ask, and for what purpose in what context. For example, courts have usually taken the view that tenants in public housing projects still have the right not to have cops bust into their unit without a warrant (absent the sort of justifications that would justify cops busting into a privately-owned apartment w/o a warrant) – the analysis isn't as simple as well the government owns the building so it's public property and you have no right to privacy when you're on public property. Although if that's the situation they're worried about you'd think the ultimate authority about who else may or may not be physically present on federal land leased out for cattle grazing and what they can do there would be up to the federal government (subject to whatever promises it has made in its lease to the rancher), rather than the Wyoming legislature.

  10. J. W. Brewer said,

    May 14, 2015 @ 10:55 am

    I wonder if similar passive phrases (i.e. "intended to be VERBED" w/o overt specification of whose intent is the relevant intent) are reasonably common in criminal statutes. Here are the first two examples I googled up out of New York's state Penal Law:

    "A person is guilty of money laundering in support of terrorism in the fourth degree when: 1. Knowing that the property involved in one or more financial transactions represents either the proceeds of an act of terrorism as defined in subdivision one of section 490.05 of this part, or a monetary instrument given, received or intended to be used to support a violation of article four hundred ninety of this part: (a) he or she conducts one or more such financial transactions which in fact involve either the proceeds of an act of terrorism as defined in subdivision one of section 490.05 of this part, or a monetary instrument given, received or intended to be used to support a violation of article four hundred ninety of this part [etc etc etc]"


    "'Rifle' means a weapon designed or redesigned, made or remade, and intended to be fired from the shoulder and designed or redesigned and made or remade to use the energy of the explosive in a fixed metallic cartridge to fire only a single projectile through a rifled bore for each single pull of the trigger."

    I suspect that in both of these instances you can come up with a plausible answer to "intended by whom" ("by anyone, as long as the defendant knows of that intent" in the first instance and "by the designer/maker" in the second) but it's going to be driven by statute-specific context and pragmatics rather than anything in the formal syntactic structure of the statutory language.

  11. Jerry Friedman said,

    May 14, 2015 @ 1:57 pm

    J. W. Brewer: Thanks for looking up those passive examples, since I was wondering how common this agent-less language was in laws and (broadly) how it might be understood.

    I agree with you that the policy behind the Wyoming law is coherent and is what you say it is (and I don't think I said otherwise). I also agree that the law is controversial and may be vague, badly drafted, ill-advised, and even unconstitutional.

    The drafters could easily have made it clear that "submitted or intended to be submitted" meant "by the collector". If, as you say, that's probably how it will be interpreted, I wonder why they didn't say that. Sloppiness? Hope that the courts will interpret it as meaning "by anyone"? An attempt to intimidate people?

    On the public-private business, after a little poking around, I can't tell whether ranchers lease land or just grazing rights. I think it's the latter. But another reason to include public land may be that air and water polluted on private land can be sampled on public land. The Slate article MYL linked to mentioned a case about streams that cross federal land, and this article from ThinkProgress has more information.

    Wikipedia says 48% of Wyoming's land is federal and 6% is state.

    I do indeed think the federal government has the final say on what happens on federal land, leased or not. As I read this law, the Bureau of Land Management or whoever can just authorize photography, bird counting, and even water sampling, and that's the end of the story. I expected that at least the National Park Service would authorize photography on its lands in Wyoming—it doesn't want anything to discourage those 3 million visitors a year at Yellowstone. In another perfunctory search, though, I can't find anything like that. I wonder what the lawyers and PR people at the NPS are thinking about this. Maybe they don't even want to acknowledge that the state law is of any concern to them.

  12. reader_not_academe said,

    May 14, 2015 @ 2:33 pm

    isn't there a PP attachment problem too? "land which is submitted"
    take a photo and just refrain from submitting the land anywhere and you should be fine.

  13. reader_not_academe said,

    May 14, 2015 @ 2:34 pm

    ah, posting before thinking. no PP attachment there. but possibly an ambivalent modifier.

  14. J. W. Brewer said,

    May 14, 2015 @ 3:03 pm

    One further wrinkle might be that the law is trying to reach people who themselves intend that the collected data be submitted to the government (if it turns out to suggest a violation), but don't necessarily plan to do the submitting themselves but might well hand it off to someone else they have a formal or informal connection with via environmentalist/activist circles who has more expertise or interest in dealing with the government agencies. Seemingly suboptimal clarity in statutory drafting is so ubiquitous that it is hard to say one way or another if the imperfections here are deliberate/tactical versus just close-enough-for-government-work ordinary practice.

  15. Neal Goldfarb said,

    May 15, 2015 @ 12:05 am


    Well, we also "take a look", "take a peek", "take a measurement", "take a reading", "take notes", etc., so the notion of appropriation is common to several sorts of information acquisition.

    Compare "take a swim", "take a walk", and "take a hike", which IMO don't have any overtones of appropriation.

    Has anyone done any research about the origins of light verbs such as "take"? Jumping off from your examples, one obvious possibility for how "take" developed into a light verb would be that starting with the lexical meaning corresponding to 'grasp and carry away', the use of the word was extended to more abstract forms of appropriation ("e.g., "take away someone's freedom"), and then further extended so that it licensed direct objects that denoted eventualities (i.e., nominalized verbs). At that point, the word would have been pretty far along the path to becoming a light verb (if not all the way there). And from there the use of "take" as a light verb could have expanded to the point where it was totally bleached of the initial semantic content, as with "take a swim".

    Yes, I think it happened just so.

  16. Rodger C said,

    May 15, 2015 @ 11:11 am

    I'm sorry, at this point I absolutely cannot forbear to recall George Carlin: "You don't take a shit, you leave a shit."

  17. Martin said,

    May 15, 2015 @ 8:53 pm

    I gather that this discussion has been going on here for a while now, and that it even led to a paper at some point, so maybe I have missed it. And it might even be somewhat OT here. But what, exactly, is the problem if the general usage of the expression "passive voice" simply has become "vague on agency" or "weakly phrased" (in a way that it is supposedly clear to the one who sees ist at play). To a certain extent, I get the annoyance, but a times this seems reminiscent of lectures on the ban of split infinitives, but on a semantic level.

    [(myl) See "Passive Voice" — 1397-2009 — R.I.P.", 3/12/2009; but also "How to defend yourself from bad advice about writing", 11/1/2006, and "Fear and loathing of the English passive", Language and Communication 2014.

    In a nutshell, the current problem is the many people who pontificate authoritatively about the evils of the passive voice, giving the impression that they are warning against a specific practice whose instances are somehow well defined, when in fact they're reacting to a vague collection of things that they dislike for a variety of conceptually unrelated reasons, or for no real reason at all.

    Advice of that kind is worse than useless for students trying to learn to write, since it gives them a choice between believing that there's nothing to learn since the advice is incoherent, or that they're somehow unable to understand ideas about grammar and usage that are apparently obvious to everyone else.]

  18. Dominik Lukes (@techczech) said,

    May 16, 2015 @ 5:46 am

    It strikes me that passive as usual has nothing to do with this. This simply a case of structural ambiguity disambiguated by presuppositional understanding (as the other comments indicate). This can be found all over the place and removing the passive would not make necessarily make it any clearer. Consider:

    "information in any form from open land which a person submits or intends to submit to any agency of the state or federal government"

    It could just as easily apply to a third party as to the original collector. The problem was not the passive but the lack of overspecification which normal language speakers do not need in daily conversation.

    It is a flaw of the legal system which allows potential prosecution based on this sort of typical feature of language. It is not a flaw in any way inherent in the passive (or at least not in this particular use of it).

  19. Martin said,

    May 16, 2015 @ 7:31 am

    Ah, OK, I thought this is rather about people who are not concerned about linguistic matters, at all, using the expression in the sense of "vague" or "evasive," in which case I wouldn't have seen the problem (even if they used it incoherently). That it is actually _taught_ that way is another thing, of course. Thanks for the links.

  20. Jerry Friedman said,

    May 16, 2015 @ 12:03 pm

    Dominik Lukes:

    I agree completely that there are other constructions that would be just as bad here. Passive constructions aren't the only ones that are vague about agency and can be misleading or insufficiently informative where the agent is important.

    I think your alternative is not ambiguous:

    "Collect" means to take a sample of material, acquire, gather, photograph or otherwise preserve information in any form from open land which a person submits or intends to submit to any agency of the state or federal government;

    To me, that means it's collecting if any person, not necessarily the collector, submits or intends to submits the information to the government.

    Actually, I'd say the original is not grammatically ambiguous; it's compositional meaning is the same. However, there's a presupposition (as you say) that actions outside a person's control can't make the person's actions a crime, and that permits a non-compositional reading.

    I don't think the legislators would have been overspecifying if they'd written something like

    "Collect" means to take a sample of material, acquire, gather, photograph or otherwise preserve information in any form from open land and submit it or intend it to be submitted to any agency of the state or federal government;

    (Assuming that's what they meant.)

    I should say that they could have left out the whole part about submitting and just made it illegal to collect or publish information.

  21. nemanja said,

    May 19, 2015 @ 11:15 am

    Fortunately, the due process clause of the 14th amendment protects us from statutes that are vague or overbroad such as this one. It's vague because it's impossible to tell what precisely are the boundaries, i.e. it's impossible for a person to reasonably know whether or not their conduct falls within the law. It's overbroad because it purports to proscribe certain constitutionally protected activities esp. in the First Amendment realm.

  22. Graeme said,

    May 22, 2015 @ 5:55 am

    Late to jump in, but there are canons of statutory interpretation.
    Ambiguity is read against the state in criminal matters and mens rea is assumed to be an element of an offence unless the law is clearly strict liability.
    So there's no problem to the legal mind that this means the collector act with an intention that the material be drawn to official attention. Which seems to marry with the legislative intention. Artists painting canvasses that decades later are hung in state buildings are excused.
    Bill's in the post.

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