On Tuesday, January 28th, a transpartisan group of four Vermont state representatives introduced legislation that would block some of the practical effects of mass data collection by the National Security Agency (NSA).
Rep. Teo Zagar (D-Windsor-4-1), along with co-sponsor Reps. Susan Davis (P/D-Orange-1), Patricia Komline (R-Bennington-Rutland) and William Stevens (I-Addison-Rutland) introduced the Fourth Amendment Protection Act to prohibit any state support of the NSA.
Based on model legislation drafted by the OffNow coalition, House Bill 732 (H732) would make it state policy to “refuse to provide material support for or assist or in any way participate in the collection of a person’s electronic data or metadata by any federal agency or pursuant to any federal law, rule, regulation, or order unless the data is collected pursuant to a warrant that particularly describes the persons, places, and things to be searched or seized.”
Similar legislation has now been introduced in 12 states, including California, where Sen. Ted Lieu (D-Torrance) and Sen. Joel Anderson (R-San Diego) co-sponsored SB828 to do the same in their state.
“State-funded public resources should not be going toward aiding the NSA or any other federal agency in indiscriminate spying on its own citizens and gathering electronic or metadata that violates the Fourth Amendment,” Lieu said in a press release.
Practically speaking, the Vermont bill addresses two areas where the NSA relies on state assistance to continue their programs.
It would ban the state from using information collected without warrant by any federal agency in criminal investigations or prosecutions.
As Reuters reported in August, 2013, the secretive Special Operations Division (SOD) is “funneling information from intelligence intercepts, wiretaps, informants and a massive database of telephone records to authorities across the nation to help them launch criminal investigations of Americans.”
Documents obtained by Reuters show that these cases “rarely involve national security issues,” and that local law enforcement is directed by SOD to “conceal how such investigations truly begin.”
Shane Trejo of the OffNow coalition suggested that this was the most important part of the legislation. “While state actions might not be able to physically stop the NSA from collecting our data without a warrant, legislation such as this can significantly reduce the practical effect of what they are trying to do with it, namely, use it in the states for non-terror criminal cases, such as prosecuting the war on cannabis,” he said.
The bill would also ban the state of Vermont from providing any resources, including water or electricity, which aids any federal agency in the collection of electronic data or metadata without a “judicially-issued warrant that particularly describes the persons, places, and things to be searched or seized.”
While the NSA does not have a physical facility in Vermont, the legislation addresses “any federal agency,” which brings many others under the proposed ban on state cooperation.
Reports in the Washington Post and USA Today last fall documented how “the FBI and most other investigative bodies in the federal government” are regularly using a mobile device known as a “stingray” to intercept and collect electronic data without a warrant. Local and state police “have access through sharing agreements.”
Passage of H732 would ban the receipt of such information and prohibit “material support” by the state to any federal agencies engaged in the practice, known as a “tower dump.”
The legislation is based off the long-standing legal principle of the anti-commandeerng doctrine, which prohibits the federal government from requiring, or “commandeering” the states to carry out its acts. The Supreme Court has upheld the doctrine in four major cases going back to 1842.
In the Prigg case of 1842, the Supreme Court held that the federal government was not allowed to require the states to help carry out federal slavery laws. And in 2013, California Governor Jerry Brown signed into law the TRUST Act, which limits the state’s cooperation with federal immigration authorities.
“While Washington waffles on immigration, California’s forging ahead,” Brown said in a press release after signing the legislation into law. “I’m not waiting.”
Trejo took a similar position on federal spying. “Instead of waiting for the federal government to stop itself, we’re taking a different path and saying ‘no’ to the idea of helping them carry out their surveillance programs,” he said. “And if we learned anything this century, Rosa Parks taught us that the simple act of saying no can change the world.”
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