Activist Post

With Congress not only failing to rein in National Security Agency (NSA) spying, but actually expanding its power in a recent funding bill, many privacy activists are looking to the states to take action to block warrantless surveillance programs. A bill filed late last week in Missouri would not only support efforts to turn of NSA’s water in Utah, but have some practical effect in the Show Me State should it pass.

The Missouri Fourth Amendment Protection Act would ban “material support or resources” from the state to warrantless federal spy programs. House Bill 264 (HB264) was introduced by third-term Rep. Keith Frederick (R-Rolla), and reads, in part:

This state and its political subdivisions shall not assist, participate with, or provide material support or resources to enable or facilitate a federal agency in the collection or use of a person’s electronic data or metadata without such person’s informed consent, or without a warrant, based upon probable cause that particularly describes the person, place, or thing to be searched or seized, or without acting in accordance with a legally-recognized exception to the warrant requirements.

“This legislation is a natural follow up to Amendment 9, which Missouri voters approved by over 70% in August,” said Michael Boldin representing the OffNow Project. “By a huge margin, the people of Missouri said that electronic communications and data should have the same protections from unreasonable searches and seizures, just like ‘persons, homes, papers, and effects,’ and this legislation would ensure that the state will not help the federal government carry out such programs.”

RESOURCES, SUPPORT FOR UTAH

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 prevent the NSA from ever setting up a new facility in Missouri. 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 has been aggressively expanding in states like Utah, Texas, Colorado and elsewhere, generally focusing on locations that can provide cheap and plentiful resources like water and power.

In a recent hearing on the Utah 4th Amendment Protection Act, a Utah state rep., intentionally or not, made a plea to other states to help out. “If Utah goes through all this trouble to turn off the water, what’s to stop the NSA from moving to another state,” he asked.

“What will stop the NSA from moving is a bill like the one Rep. Frederick just filed in Missouri,” said Boldin. “Congress isn’t going to get the job done, and Utah can’t do it alone. State by state we can box them in and shut them down.”

PRACTICAL EFFECT

By including a prohibition on participation in the illegal collection and use of electronic data and metadata by the state, HB264 would also prohibit what NSA former Chief Technical Director William Binney has 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 is the NSA collecting this data and building profiles, they’re encouraging state and local law enforcement to violate the 4th 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,” said Binney.

LEGALITY

There is little to no concrete debate about the Constitutionality of Federick’s bill, as the Supreme Court has repeatedly upheld the principle that the states cannot be required to expend resources or manpower to help the federal government carry out its acts or programs.

Known as the anti-commandeering doctrine, the legal principle rests primarily on four Supreme Court opinions dating back to 1842. In Prigg v. Pennsylvania (1842), Justice Joseph Story held that the federal government could not force states to implement or carry out the Fugitive Slave Act of 1793. He said that it was a federal law, and the federal government ultimately had to enforce it.

The fundamental principle applicable to all cases of this sort, would seem to be, that where the end is required, the means are given; and where the duty is enjoined, the ability to perform it is contemplated to exist on the part of the functionaries to whom it is entrusted. The clause is found in the national Constitution, and not in that of any state. It does not point out any state functionaries, or any state action to carry its provisions into effect. The states cannot, therefore, be compelled to enforce them; and it might well be deemed an unconstitutional exercise of the power of interpretation, to insist that the states are bound to provide means to carry into effect the duties of the national government, nowhere delegated or entrusted to them by the Constitution.

Other notable cases include New York v. United States (1992), Printz v. United States (1997), and Independent Business v. Sebelius (2012). Noted Constitutional scholar Randy Barnett of Georgetown Law said, “State governments are free to refrain from cooperating with federal authorities if they so choose. In general, states cannot attack federal operations, but that’s not the same as refusing to help.”

NEXT UP

Missouri is the first of what is expected to be a number of other states introducing similar legislation for 2015. The bill in Utah is being prepared for debate and discussion in the state house, and at least three more states will introduce a 4th Amendment Protection Act in the coming weeks. The Missouri state legislative session starts on Jan. 7, 2015. HB264 will first be assigned to a House committee, where it will need to pass by majority vote before the full house can consider it.

Activists are strongly encouraged to contact both their state rep and senator in support.

ACTION STEPS

In Missouri, call your state rep, and ask them to cosponsor and support HB264. Contact info here: http://www.house.mo.gov/legislatorlookup.aspx

Also, call your state senator and ask them to introduce a similar bill in the senate. Contact info here: http://www.senate.mo.gov/LegisLookup/default.aspx

ALL OTHER STATES, call both your state rep and senator and ask them to introduce the 4th Amendment Protection Act for your state. Legislation and contact info here: http://openstates.org/find_your_legislator/

The OffNow Project is an organization committed to stopping unconstitutional NSA spying and reining in the surveillance-state through state and local activism.