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How Can the States Provide Fourth Amendment Protection Against the NSA?

(Photo: EFF Photos / Flickr)

In her 2004 Brooklyn Law Review article, Ann Althouse offered some powerful suggestions on how to resist “anti-terrorism” powers, such as the Patriot Act, and should be seen as a guide to resisting NSA spying:

The fight against terrorism has raised concerns that the federal government has overreached its legitimate power. Concerns about racial profiling, invasions of privacy, unreasonable searches, and infringement on free speech have fueled a political movement, led by groups such as the American Civil Liberties Union and the Bill of Rights Defense Committee (BORDC), urging state and local government to adopt resolutions directing their officials not to participate in at least some aspects of the antiterrorism effort.

More on applying this to the NSA in a moment. First, is this legal?

The Doctrine

The ACLU and BORDC resolutions against the Patriot Act (and subsequent ACLU-backed state laws refusing to comply with the 2005 REAL ID Act) were based on a widely accepted legal principle known as the “anticommandeering doctrine.”

This means the federal government cannot require a state to carry out federal acts. The federal government can pass a law and try to enforce it, but your state isn’t required to help them.

The US Supreme Court has repeatedly affirmed anticommandeering, relevant court cases being:

* 1842 Prigg: The court held that states weren’t required to enforce federal slavery laws.

* 1992 New York: The court held that Congress couldn’t require states to enact specified waste disposal regulations.

* 1997 Printz: The court held that “the federal government may not compel the states to enact or administer a federal regulatory program.”

Under this doctrine, Althouse noted that “state and local government officials, if they have the nerve, will be able to decline to carry out the anti-terrorism tasks Congress or the president attempts to assign to them.”

Applied to NSA

This can have a significant impact on the NSA’s ability to continue its mass-spying programs.

In 2006, the Baltimore Sun reported that the NSA had maxed out the capacity of the Baltimore-area power grid:

The NSA is already unable to install some costly and sophisticated new equipment. At minimum, the problem could produce disruptions leading to outages and power surges. At worst, it could force a virtual shutdown of the agency.

To get around the physical limitation of the amount of power required to monitor virtually every piece of communication around the globe, the NSA started searching for new locations with independent resources.

A location was chosen in San Antonio because of the independent power grid in Texas. The new Utah Data Center was chosen for access to cheap utilities, primarily water. The water-cooled supercomputers there require 1.7 million gallons of water per day to function.

That water is being supplied by a political subdivision of the State of Utah. Under the anticommandeering doctrine, Utah isn’t required to provide that water.

No water = No NSA data center.

But it’s not just Utah, and it’s not just water. The war on drugs, for example, is a major benefactor of NSA data collection. According to the Electronic Frontier Foundation (EFF), the DEA’s Special Operations Division works closely with the NSA, passing “tips” along to local law enforcement and instructing them to cover their tracks so the public doesn’t learn where the information came from.

EFF calls this “intelligence laundering,” which flat-out “bypasses the Constitution.”

The Act

Following the lead of the ACLU and BORDC, model legislation to refuse cooperation with the NSA is now available for introduction in your state. The 4th Amendment Protection Act would ban states like Utah from providing water, or Texas from providing electricity, to NSA data centers. It would also ban law enforcement from receiving “tips” from the DEA’s special operations division.

In addition, the Act prevents state-run universities from partnering with the NSA. Currently there are 166 so-called “Centers of Academic Excellence” around the country. These schools are major research and recruiting centers for the agency.

Corporations could find themselves in trouble, too, under the proposed Act:

Any corporation or person that provides services to or on behalf of this state and violates the prohibitions of Section 2 of this act shall be forever ineligible to act on behalf of, or provide services to, this state or any political subdivision of this state.

As a result, corporations like Georgia Power, Rocky Mountain Power, Big-D Construction or Intercontinental Hotels just might give pause before signing a new contract to provide services to the NSA.

Can It Work?

This same process was used effectively by northern abolitionists in resistance to the Fugitive Slave Act of 1850. Today, states like Washington and Colorado are helping end the war on cannabis by refusing to comply with federal prohibition.

We should follow their courageous path against the NSA as well.

Calling your state representative and senator today and encouraging them to introduce and pass the 4th Amendment Protection Act would be a good first step. It’s not going to be easy, but sooner or later, we’re going to have to stop putting up with it.

Rosa Parks may have put it best:

People always say that I didn’t give up my seat because I was tired, but that isn’t true. I was not tired physically, or no more tired than I usually was at the end of a working day. I was not old, although some people have an image of me as being old then. I was forty-two. No, the only tired I was, was tired of giving in.