By Mike Maharrey

A bill introduced in the New Hampshire House for the 2016 session would prohibit a federal-local surveillance collaboration that the NSA’s former chief technical director called the “biggest threat since the civil war.”

Rep. Neal Kurk prefiled House Bill 1494 (HB1494). The legislation would prohibit government agencies from acquiring, collecting, retaining or using personal information and social media data without a warrant in most cases.

The bill does allow a few exceptions to the warrant requirement. Governments can collect personal information with the express written permission of the owner, pursuant to a judicially recognized exception to the warrant requirement or in some emergency situations.





HB1494 broadly defines “personal information.”

A person’s name; date or place of birth; social security number; address; employment history; credit history; financial information; account numbers; cellular telephone, voice over internet protocol or landline telephone numbers; biometric identifiers, including fingerprints, facial photographs or images, retinal scans, DNA/RNA or other identifying data unique to that individual; or one or more pieces of information that, when considered together or in the context of the information that is presented or gathered, are sufficient to specify a unique individual.

HB1494 includes criminal penalties. In other words, law enforcement agents collecting information in violation of the law would be subject to arrest.

The legislation does contain a qualification that seems rather broad. It allows information collection “if required by a government pursuant to state or federal law, provided that such information is requested of and supplied by an information and service provider for named individuals only or, in the case of employees and/or contractors of an information and service provider, for all of its employees and/or contractors.” It remains unclear exactly how much latitude this would give law enforcement agencies to gather data on individuals without a warrant.

Even with this loophole, HB1494 would still bar state and local law enforcement agencies in New Hampshire from “acquiring” any information or data gathered through mass surveillance – including information shared by federal agencies.

EFFECT ON FEDERAL DATA SHARING

Even though the bill does not directly address data gathered by federal agencies, prohibiting state and local law enforcement from obtaining data gathered through mass surveillance would effectively end a practical effect of NSA spying.

NSA collects, stores, and analyzes data on countless millions of people without a warrant, without even the mere suspicion of criminal activity. The NSA also tracks the physical location of people through their cellphones. In late 2013, the Washington Post reported that NSA is “gathering nearly 5 billion records a day on the whereabouts of cellphones around the world.” This includes location data on “tens of millions” of Americans each year – without a warrant.

Through fusion centers, state and local law enforcement act as information recipients from various federal departments under Information Sharing Environment (ISE). ISE partners include the Office of Director of National Intelligence, which is an umbrella covering 17 federal agencies and organizations, including the NSA. State and local law enforcement share data up the chain with the feds.

The NSA expressly shares warrantless data with state and local law enforcement through a super-secret DEA unit known as the Special Operations Division (SOD). That information is being used for criminal prosecutions.

A Reuters report last fall showed that most of this shared data has absolutely nothing to do with national security issues. Most of it involves routine criminal investigations. This data sharing shoves a dagger into the heart of the Fourth Amendment.

In an interview last fall, former NSA technical chief William Binney called NSA information sharing “the most threatening situation to our constitutional republic since the Civil War.”

“That’s what happens when you allow this kind of assembly of information – that’s so much power. That’s like J. Edgar Hoover on super-steroids,” he said. “This is not compatible with any form of democracy at all.”

Passage of HB1494 into law would prohibit this from happening in New Hampshire.

ACTION ITEMS

For New Hampshire: Contact your state representative and politely urge them to support and co-sponsor HB1494. You can find their contact information HERE.

For other states: Contact your state legislators and urge them to introduce legislation to protect electronic data. You can find contact information HERE.

Mike Maharrey writes for the TenthAmendmentCenter.com where this article first appeared.