More States Looking To Neutralize The NSA Through Local Legislation

from the a-widening-split-between-the-federal-government-and-its-constituents dept

Wed, Jan 29th 2014 8:47am — Tim Cushing

The NSA's new data center in Utah has provided the flashpoint for legislation targeted at "nullifying" the agency by cutting off its access to public utilities and/or leveraging the powers granted to states to combat federal government overreach. An activist group known as The Tenth Amendment Center proposed a state law that would cut off the new data center's much needed water supply, along with any other public utility or service, like sanitation and road repair, in hopes of (at minimum) forcing the NSA to reconsider its collection tactics, or failing that, to find a new home.

Now, more states are joining the push-back against the agency, again using legislation crafted at the state level to curtail the NSA's overreach, as The New American reports.

Arizona

In Arizona, SB1156, which has 14 Republican sponsors, was introduced by state Sen. Kelli Ward. It would bar the state from providing material support to the agency’s activities and ban any data collected without a warrant from being used in court.

Ward announced her intentions in December to introduce a bill that would keep Arizona from supporting the NSA.

New Hampshire

HB 1533 is a bipartisan bill sponsored by two GOP lawmakers and one Democrat. The measure requires law enforcement to obtain “a warrant to search information in a portable electronic device.”

Section IV of the bill mandates that “A government entity that purposely violates the provisions of this section shall be guilty of a class A misdemeanor.”

New Hampshire's government is also considering another bill (HB 1619), which restores the expectation of privacy to information given to third parties, something the NSA, FBI and others have relied on for years to acquire data without warrants.

An individual shall have an expectation of privacy in personal information, including personal identifiers, content, and usage, given or available to third-party providers of information and services, including telephone; electric, water and other utility services; internet service providers; social media providers; banks and financial institutions; insurance companies; and credit card companies.

As The New American notes, this restoration goes even further than just protecting American citizens. The wording specifically notes this applies to "individuals" rather than just "citizens," extending the protection to non-citizen US residents and visitors.

Tennessee

The Tennessee Fourth Amendment Protection Act was introduced by State Sen. Stacey Campfield (R-Knoxville) late Tuesday evening. Rep. Andy Holt (R-Dresden) will file the companion bill in the House.

Based on model legislation drafted by the OffNow coalition, SB1849 would prohibit the state of Tennessee from “providing material support to…any federal agency claiming the power to authorize the collection of electronic data or metadata of any person pursuant to any action not based on a warrant” as required by the Fourth Amendment.

The entity mentioned in the legislation, OffNow, is a creation of the Tenth Amendment Center, and its legislative activity seeks to nullify the agency through the power of states and their public utilities. With enough support, many states could make themselves inhospitable hosts for the NSA by tying utility access to stipulations like the above. At the very least, state governments who pass laws like these will be "on the record" as not being complicit in the NSA's questionable collection activities. It also indicates they're willing to combat government overreach, which in the age of Real ID, nationalized health care and domestic surveillance, is a good stance to be taking.

The real test of legislation like those above will be when the NSA offers to set up shop in these locations. Turning down the agency means turning down a whole lot of federal money and additional employment, something that may not sit well with many constituents, and even less so with certain politicians.

New Hampshire's and Arizona's bills will face additional challenges as neither limits the wording to only the NSA's collections/"searches." (New Hampshire's bill only says "federal agency.") Arizona's in particular will affect local law enforcement as well, and if they've become used to a certain level of warrantless access, they won't be too thrilled to give that up. The heaviest push-back there may be from local PDs and sheriffs departments, although the arguments against the bills will be very familiar -- swapping only "crime" (or "drugs") for "terrorism."

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: nsa, privacy, state laws, states, surveillance

41 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

Violynne (profile), 29 Jan 2014 @ 7:57am

Good grief. What a waste of more money, time, and energy taking away from better things to legislate.

The states may be "on the record", but they can not override federal laws.

They're federal for such a purpose as to prevent states from interfering.

Worse, this just puts businesses into one hell of a legal bind when they're both breaking one law while following another.

Stupid waste of time.
[ link to this | view in thread ]
That One Guy (profile), 29 Jan 2014 @ 8:14am

'It would bar the state from providing material support to the agency�s activities and ban any data collected without a warrant from being used in court. '

'The measure requires law enforcement to obtain �a warrant to search information in a portable electronic device.� '

While nice that several states are considering legislation to push back on government and 'law enforcement' overreach and abuse of powers, the fact that such things are even needed is flat out disgusting and disappointing. The idea that those that are supposed to be upholding the law, instead have to be forced to actually follow the law just shows how far they've fallen in the desperate search for more power, more 'safety'.
[ link to this | view in thread ]
jackn, 29 Jan 2014 @ 9:00am

Re:
Yes, your post was a stupid waste of time.
[ link to this | view in thread ]
Anonymous Coward, 29 Jan 2014 @ 9:08am

Re:
Worse, this just puts businesses into one hell of a legal bind when they're both breaking one law while following another.

Good. I hope a lot of businesses are sued out of existence over there complicity in these illegal government actions. At the least, maybe they will start to consider how much data they keep on their customers and what is truly needed in the course of business and what is excessive.
[ link to this | view in thread ]
Anonymous Coward, 29 Jan 2014 @ 9:09am

I have to decided to vote against anyone who uses the "because terrorism" argument in the next election cycle.
[ link to this | view in thread ]
mcinsand, 29 Jan 2014 @ 9:10am

maybe not a waste of time, after all
This post had me thinking. I believe firmly that those federal officials that swore to uphold the constitution on taking the oath of office should be held accountable. Maybe a less expensive way to oppose the NSA's over-reach is for states to hold their representatives and senators legally accountable. States' laws are supposed to be consistent with federal laws, right? And our federal laws are supposed to be consistent with the constitution. So, what if congresspeople and senators knew that their states were watching and, if they were to actively undermine the Constitution, then their home state might have a jail cell waiting for such a day that they leave office (I do think there might be legal problems with states prosecuting a current federal official in curcumstances such as this... although I would like to be wrong.).
[ link to this | view in thread ]
Chris Rhodes (profile), 29 Jan 2014 @ 9:22am

Re:
"they can not override federal laws."
Refusing to help the feds enforce a federal law and prohibiting state services from being used to help the feds enforce federal law is not the same thing as "overriding federal law".
[ link to this | view in thread ]
limbodog (profile), 29 Jan 2014 @ 9:24am

They've been ignoring the Constitution all this time, why would anyone think they'd suddenly have a change of heart about legality when Skokie, IL passes a law about it?
[ link to this | view in thread ]
This comment has been flagged by the community. Click here to show it

krolork (profile), 29 Jan 2014 @ 9:31am

We need a revolution.
[ link to this | view in thread ]
Pragmatic, 29 Jan 2014 @ 9:32am

Re: Re:
Actually, no it's not. You may be a fan of states' rights, Jackn, but you fail to realize that federal law trumps state law every time. That's why legalizing pot in many states hasn't made a difference in the war on drugs.

So yeah, Violynne called it right. What they should be doing is getting their reps in the House to vote to defund and disband the NSA. All those sweet, sweet federal dollars can be collected via other schemes such as the planned infrastructure projects being mooted.
[ link to this | view in thread ]
jackn, 29 Jan 2014 @ 10:09am

Re: Re: Re:
Ah, yes it is.
[ link to this | view in thread ]
DandonTRJ (profile), 29 Jan 2014 @ 10:28am

Re: Re: Re:
The Supremacy Clause doesn't negate the anti-commandeering doctrine.
[ link to this | view in thread ]
John Nemesh, 29 Jan 2014 @ 10:39am

Re:
I agree...just a waste of time! We should all just roll over and let the NSA do what it wants. I am sure that the people in charge know what's best for us. They would NEVER abuse such power! We should all just support those people in power, never question their authority, and let them change the laws to fit their needs as they see fit. I am SURE nothing bad will happen.
[ link to this | view in thread ]
John Nemesh, 29 Jan 2014 @ 10:39am

Re:
I agree...just a waste of time! We should all just roll over and let the NSA do what it wants. I am sure that the people in charge know what's best for us. They would NEVER abuse such power! We should all just support those people in power, never question their authority, and let them change the laws to fit their needs as they see fit. I am SURE nothing bad will happen.
[ link to this | view in thread ]
John Nemesh, 29 Jan 2014 @ 10:40am

Re:
It's coming. Those who ignore the lessons of history are bound to repeat it.
[ link to this | view in thread ]
Mason Wheeler (profile), 29 Jan 2014 @ 10:58am

Anyone else find this worrisome?
As cool as this may sound, what sort of precedent does it set? If it's OK for state governments to turn off the power and water for one group they don't like...
[ link to this | view in thread ]
John Fenderson (profile), 29 Jan 2014 @ 11:12am

Re: Anyone else find this worrisome?
They've been doing this for years -- turning off power and water in crack houses, etc.
[ link to this | view in thread ]
Anonymous Coward, 29 Jan 2014 @ 11:29am

Re:
That really all depends on the particular law though. Some things are clearly not within federal jurisdiction but can be a big problem for those federal agencies. The Utah effort is a perfect example. There is no contradiction of federal law by passing a state law that denies them access to state managed utilities and services. The state does not have to provide them with any of that. It's the same as the state marijuana legalization laws. They don't contradict federal laws. They simply state that the state and local law enforcement will not devote state resources to assist the feds in enforcing the federal laws which means if the feds want to arrest and prosecute someone in that state for marijuana possession they have to do it entirely on their own which is a task that is pretty much cost prohibitive for the federal government in an entire state without the assistance of the local systems.
[ link to this | view in thread ]
Anonymous Coward, 29 Jan 2014 @ 11:46am

Re: Re:
The Utah effort is an interesting one because the federal government may have a lot of power and money but what they don't have is the infrastructure for these sorts of things. Typically they throw the use their money to buy the use of the local infrastructure that is already there to accomplish what they need. If the locals refuse to take that money anymore and provide assistance then that would mean the feds would have to bring in their own people to build and manage separate power plants, secure reliable sources of water and maintain the systems for delivering that water where they need it. Staff their own crews to build and maintain the roads there. All of that after they spent $10 billion to build the facility in the first place. Picking up and moving to another location where they would have to basically start over and would have no guarantee that the same thing wouldn't happen again once people there found out about it. It really looks like a no win situation for them if this goes through.
[ link to this | view in thread ]
Anonymous Coward, 29 Jan 2014 @ 11:49am

Washington State also has a bill in the works.
http://watchdog.org/124305/nsa/
[ link to this | view in thread ]
Anonymous Coward, 29 Jan 2014 @ 11:53am

Re: Re: Re:
And even if they can get court orders to force the state utilities to strike down the state laws and provide services, if the locals are being forced to provide it against their will, I can't imagine the level of service will be very good.

"Water pressure is really low you say? Well we will send someone out to take a look at that as soon as we have someone available. It will probably be a couple of weeks before we can get to that."

"The roads need to be repaired? Currently all our crews are booked solid on other projects. We will let you know when an opening comes available."
[ link to this | view in thread ]
akp (profile), 29 Jan 2014 @ 12:12pm

This is going to be a pretty interesting tactic to watch. The same sort of fight is coming as more and more states support various legalization/decriminalization of marijuana.

To me, it speaks to the absolute loss of faith in Congress/POTUS to legislate what the American people actually want.

Everyone knows that federal law trumps state law, but that just means a bunch of cases that can eventually go to the Supreme Court. That means actual rulings on the constitutionality of some federal programs.

The Court can't rule on, or set precedents on things that haven't been brought to court. There need to be arrests or lawsuits for the Court to consider. They don't get to just say "hey, this NSA stuff isn't right." They have to have an actual case brought to them to decide on.

The states are acting to force the Federal Government to put their money where their mouth is, so to speak. They're throwing down a gauntlet that says "go on, try to get your arrests and cases heard here... We dare you."

Then the legal system, on up to the Supreme Court gets to act as the check it's supposed to be on un-constitutional laws and programs.
[ link to this | view in thread ]
art guerrilla (profile), 29 Jan 2014 @ 12:13pm

i say we bring back 'shunning'...
...all the NSA droids who work there, all the kongresskritters who support the NSA, all the locals who provide goods/services to keep them running:
SHUN THEM ALL ! ! !

turn your backs on them, refuse to talk to them, stop babysitting their kids, don't shake their hands at church, refuse to -when legal- provide them goods/services, let them KNOW you find their UN-American, UN-constitutional activities anathema...

fuck'em, they've deserted their own, they can be on their own without our help or society...

let'em hunker down in their tippy-top secret bunkers and EAT THEIR SURVEILLANCE for dinner, traitors all...

art guerrilla
aka ann archy
eof
[ link to this | view in thread ]
akp (profile), 29 Jan 2014 @ 12:22pm

Re: Anyone else find this worrisome?
It's not that worrisome, actually.

They're passing laws that simply reinforce the 4th Amendment, and then make it unlawful to support anyone assisting the law-breakers. (Something that's already illegal... Since an "accomplice" is a thing already)

It creates a due process for the "cutting off of power" to establishments that are breaking the law (in this case, the 4th Amendment-likes).

They have to pass these as state laws, because they have no way to enforce Federal Law (the real 4th Amendment).

They've basically written themselves the jurisdiction to enforce, at the state level, a federal law.
[ link to this | view in thread ]
akp (profile), 29 Jan 2014 @ 12:23pm

Re: i say we bring back 'shunning'...
Luckily, most businesses I know have a clear sign on the door: "We reserve the right to refuse service to anyone."
[ link to this | view in thread ]
akp (profile), 29 Jan 2014 @ 12:31pm

Re: Re: Re:
The sad part is that initiatives to cost the NSA much more money will just result in that money coming out of taxpayers' pockets.

I applaud these measures, but matters are going to get a lot worse before they get better. No way is the NSA going to just roll over and say "welp, we tried. I guess we'll just have to build our own/go elsewhere."

Nope, they'll fight it. And then there will be lawsuits. And those lawsuits will take years to finally come to the Supreme Court where we can finally get a ruling on this mess.
[ link to this | view in thread ]
lucidrenegade (profile), 29 Jan 2014 @ 12:39pm

Re:
Not sure why people are "reporting" someone who states that we need a revolution...
[ link to this | view in thread ]
Anonymous Coward, 29 Jan 2014 @ 12:39pm

Re: Re: Re: Re:
Money only helps them if the locals agree to provide the utilities and services for the money. Otherwise they have to come up with the resources on their own. And yes those lawsuits witll take years. All the while without power, water, or any other utilities provided by the local infrastructure making them SOL the entire time.
[ link to this | view in thread ]
lucidrenegade (profile), 29 Jan 2014 @ 12:41pm

Re:
Federal law doesn't always trump state law. See DandonTRJ's earlier post.
[ link to this | view in thread ]
Anonymous Coward, 29 Jan 2014 @ 12:41pm

Re: Re:
Because he makes the same comment in the same manner over and over in post after post without adding any insight to the discussion, ad nauseum.
[ link to this | view in thread ]
toyotabedzrock (profile), 29 Jan 2014 @ 3:37pm

I like the NH bill it just needs to apply to local police as well. It is more sane. And I doubt a court would allow a state to withhold services to an NSA building.
[ link to this | view in thread ]
Sunhawk (profile), 29 Jan 2014 @ 11:17pm

Re: Re: Re:
The thing is that in many of these cases, the states in question aren't preparing to arrest federal agents or the like - instead, it's more or less a declaration that they won't give any help or resources.

It's the political equivalent of a white mutiny. Sure, you can build a center on land in the state that you bought, but that doesn't guarantee you exemption from requirements for utilities. Sure, we can't try and prevent you from collecting records, but we can declare that none of our state or local courts may used that information to prosecute anyone, and no state or local law enforcement can assist in any resulting action.
[ link to this | view in thread ]
me@me.net, 30 Jan 2014 @ 5:27am

Re:
Thats the fun, if what is Fed is doing is questionable in it's legality whether you are or arent circumventing Federal law is very debatable, just like the bullshit the NSA is doing.
[ link to this | view in thread ]
Anonymous Coward, 30 Jan 2014 @ 7:53am

Re: maybe not a waste of time, after all
While you're thinking did you think about the precept that reasonable men may differ, and how that might apply to different interpretations of the Constitution than your own? Or do you just assume that anyone who has a different thought than yours is being unreasonable?
[ link to this | view in thread ]
Anonymous Coward, 30 Jan 2014 @ 7:56am

Re: Re: Re:
How much of the infrastructure owned by the states was funded by the Feds? Look at interstate highways, TVA, hydro power dams (Corp of Engineers), etc. Getting in a passing match with Uncle Sugar isn't sweet.
[ link to this | view in thread ]
smoodle (profile), 30 Jan 2014 @ 8:04am

Other Fourth Amendment Legislation
Inspired by this post I went and looked at what all the states are doing. Turns out there's quite a number of bills referring to the fourth amendment already introduced this year, covering quite a bit of ground.

A complete list is here: http://www.billtrack50.com/PublicStakeholder/khYMwUMdAEOpDEjYlo3AUg
[ link to this | view in thread ]
ryuugami, 30 Jan 2014 @ 10:05am

Re:
I have to decided to vote against anyone who uses the "because terrorism" argument in the next election cycle.

I'd suggest adding "because drugs", "think of the children", "because hackers" and "because pirates" to the no-go argument list.

Though I'm not sure if that leaves anyone to vote for.
[ link to this | view in thread ]
Mason Wheeler (profile), 30 Jan 2014 @ 10:16am

Re: Re: Anyone else find this worrisome?
Yeah, and that worked out so well when Arizona tried it...
[ link to this | view in thread ]
saroth78, 30 Jan 2014 @ 11:35am

Response to: Violynne on Jan 29th, 2014 @ 7:57am
What a foolish comment. Do u work for the nsa or something? Those who dont care enough about their rights to have them violated should move to a country with less civil rights. The federal government does not have dictatorial power over states, and if the fed/elected officials gets too carried away bcuz its ignoring those who elected
it, it can and will be replaced. Out of curiosity, what do u feel is more important legislation, than protecting peoples rights? I applaud the states for doing what the feds cant or wont do, except drag their feet incompetently as usual.
[ link to this | view in thread ]
Anonymous, 30 Jan 2014 @ 4:06pm

How well did similar moves against Obamacare work out?
[ link to this | view in thread ]
Brenda, 23 Apr 2014 @ 2:10am

Re: Re: Re: Re:
"Nope, they'll fight it. And then there will be lawsuits. And those lawsuits will take years to finally come to the Supreme Court where we can finally get a ruling on this mess."

Remember they tried fighting the laws that passed on pot too but they found themselves overwhelmed to fight a whole state on this issue and decided it best just to allow leave those states alone!!
[ link to this | view in thread ]