LANSING, Mich. (March 30, 2017) – A bill introduced in the Michigan House would ban “material support or resources” for warrantless federal surveillance programs, an essential step for states to take in a time when the federal government seems unlikely to ever end their own spying.

Rep. Martin Howrylak (R-Troy) introduced House Bill 4430 (HB4430) on March 28. The legislation would prohibit the state and its political subdivisions from assisting, participating with, or providing “material support or resources, to a federal agency to enable it to collect, or to facilitate in the collection or use of a person’s electronic data” unless one of three conditions apply:

(a) The person has given informed consent.

(b) The action is pursuant to a warrant that is based upon probable cause and particularly describes the person, place, or thing to be searched or seized.

(c) The action is in accordance with a legally recognized exception to warrant requirements.

“If the federal government continues its mass warrantless surveillance programs, it should get no help carrying them out from the State of Michigan,” Howrylak said. “My bill will certify that the State of Michigan will not assist the federal government in any data collection unless it is 100 percent consistent with the U.S. Constitution.”

The feds share and tap into vast amounts of information gathered at the state and local level through a program known as the “information sharing environment” or ISE. In other words, these partnerships facilitate federal efforts to track the movements of, and obtain and store information on, millions of Americans. This includes monitoring phone calls, emails, web browsing history and text messages, all with no warrant, no probable cause, and without the people even knowing it.

According to its website, the ISE “provides analysts, operators, and investigators with information needed to enhance national security. These analysts, operators, and investigators… have mission needs to collaborate and share information with each other and with private sector partners and our foreign allies.” In other words, ISE serves as a conduit for the sharing of information gathered without a warrant.

PRACTICAL EFFECT

Because the federal government relies heavily on partnerships and information sharing with state and local law enforcement agencies, passage of HB4430 could potentially hinder warrantless surveillance in the state. For instance, if the feds wanted to engage in mass surveillance on specific groups or political organizations in Michigan, it would have to proceed without state or local assistance. That would likely prove problematic.

State and local law enforcement agencies regularly provide surveillance data to the federal government through ISE and Fusion Centers. They collect and store information from cell-site simulators (AKA “stingrays”), automated license plate readers (ALPRs), drones, facial recognition systems, and even “smart” or “advanced” power meters in homes.

Passage of HB4430 could set the stage to end this sharing of warrantless information with the federal government. It would also prohibit state and local agencies from actively assisting in warrantless surveillance operations.

By including a prohibition on participation in the illegal collection and use of electronic data and metadata by the state, HB4430 would also prohibit what NSA former Chief Technical Director William Binney called the country’s “greatest threat since the Civil War.”

The bill would ban the state from obtaining or making use of electronic data or metadata obtained by the NSA without a warrant.

Reuters revealed the extent of such NSA data sharing with state and local law enforcement in an August 2013 article. According to documents obtained by the news agency, the NSA passes information to police through a formerly secret DEA unit known Special Operations Divisions and the cases “rarely involve national security issues.” Almost all of the information involves regular criminal investigations, not terror-related investigations.

In other words, not only does the NSA collect and store this data. using it to build profiles, the agency encourages state and local law enforcement to violate the Fourth Amendment by making use of this information in their day-to-day investigations.

This is “the most threatening situation to our constitutional republic since the Civil War,” Binney said.

NSA FACILITIES



The original definition of “material support or resources” included providing tangible support such as money, goods, and materials and also less concrete support, such as “personnel” and “training.” Section 805 of the PATRIOT Act expanded the definition to include “expert advice or assistance.”

Practically-speaking, the legislation would almost certainly stop the NSA from ever setting up a new facility in Michigan.

In 2006, the agency maxed out the Baltimore-area power grid, creating the potential, as the Baltimore Sun reported, for a “virtual shutdown of the agency.” Since then, the NSA aggressively expanded in states like Utah, Texas, Georgia and elsewhere, generally focusing on locations that can provide cheap and plentiful resources like water and power.

For instance, analysts estimate the NSA data storage facility in Bluffdale, Utah, will use 46 million gallons of water every day to cool its massive computers. The city supplies this water based on a contract it entered into with the spy agency. The state could turn of the water by voiding the contract, or refusing to renew it. No water would effectively mean no NSA facility.

What will stop the NSA from expanding in other states? Bills like HB4430. By passing this legislation, Michigan would become much less attractive for the NSA because it would not be able to access state or local water or power supplies. If enough states step up and pass the Fourth Amendment Protection act, we can literally box them in and shut them down.

LEGAL BASIS

HB4430 rests on a well-established legal principle known as the anti-commandeering doctrine. Simply put, the federal government cannot force states to help implement or enforce any federal act or program. The anti-commandeering doctrine is based primarily on four Supreme Court cases dating back to 1842. Printz v. US serves as the cornerstone.

“We held in New York that Congress cannot compel the States to enact or enforce a federal regulatory program. Today we hold that Congress cannot circumvent that prohibition by conscripting the States’ officers directly. The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program. It matters not whether policy making is involved, and no case by case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty.”

WHAT’S NEXT



California Gov. Jerry Brown signed a limited version of the Fourth Amendment Protection Act in 2014. The law prohibits state cooperation when a federal agency “requests” state assistance in data collection if there exists “actual knowledge that the request constitutes an illegal or unconstitutional collection of electronically stored information.” Although that law will need further steps to put into practical effect, it set a strong foundation that HB4430 would expand on for Michigan.

The New Hampshire House passed a bill similar to HB4430. The vote on HB171 was 199-153.

HB4430 was referred to the House Committee on Judiciary where it will need to pass by a majority vote before moving forward in the legislative process.