Blueprint for States to Take On Warrantless Federal Surveillance
Can states take on warrantless, mass surveillance from the NSA and other federal agencies? The first steps are already happening.
A new law went into effect in Michigan in June 2018 barring “material support or resources” for all warrantless federal surveillance programs. Introduced by Representative Martin Howrylak, House Bill 4430 (HB4430), passed the Michigan House, overwhelmingly, by a vote of 108-1. The Michigan Senate passed the measure, unanimously, 37-0.
The bill was modeled after a piece of model legislation drafted by the Tenth Amendment Center called The Fourth Amendment Protection Act.
The new law prohibits 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 facilitate in the collection or use of a person’s electronic data” unless one of these five conditions apply:
- The person has given informed consent.
- The action is pursuant to a warrant that is based on probable cause and particularly describes the person, place or thing to be searched or seized.
- The action is in accordance with a legally recognized exception to warrant requirements.
- The action will not infringe on any reasonable expectation of privacy the person may have.
- This state or a political subdivision of this state collected the electronic data or metadata legally.
Michigan became the second state to take prohibitive actions against warrantless federal surveillance. California’s 2014 legislation was the first law of its kind, but it lacks the specificity that was included in the Michigan bill. The California law needs additional steps for effectuation by defining specifically what actions constitute “illegal and unconstitutional.”
The legislation enacted by Michigan mirrors the California bill in that it bans the state from participating in or providing material support or resources to any federal agency engaged in the “illegal and unconstitutional collection of electronic data or metadata.” The inclusion of material resources is an important element of HB4430 because it also relates to public consumption resources such as water and electricity supplied by state or local government-run entities. These types of resources are attractive to the NSA, especially when they are abundant and cheap. The NSA needs power and water to maintain and operate the massive data storage and analysis facilities it continues to build as it sweeps up the communications of the entire globe.
The Michigan bill expands where the California bill stops by specifically defining what actions constitute “illegal and unconstitutional.” Additionally, the bill goes full circle by prohibiting specific state actions that are now regarded as complicit.
“This reform safeguards the fundamental rights of all Michigan residents, who are guaranteed protection of their property and privacy rights by the Fourth Amendment of the U.S. Constitution,” Howrylak said. “Michigan will not assist the federal government with any data collection unless it is consistent with the Constitution.”
The legislation brings federal law enforcement and intelligence agencies in line with constitutional restraints and expectations at a state level, by exerting state powers. With the rapidly increasing capabilities of the high-tech surveillance apparatus employed by agencies such as the NSA, it is becoming critically important that each and every state act independently of the federal government to take prudent steps that protect Americans from these types of invasive privacy breaches. It is becoming increasingly more evident that federal legislators in Washington, D.C. are just not committed to enacting measures that will protect Americans from being domestically spied upon.
Essentially, this law is the total package with regard to stopping unconstitutional federal surveillance. It provides a structural design that can be applied in any state. Practically speaking, the legislation will almost certainly discourage the NSA from ever establishing a new facility in Michigan. To enact identical laws in all 50 states would serve to truncate and nullify warrantless federal spying and would protect American citizens from its invasive effects–all without having to rely upon unwilling lawmakers in Washington, D.C.
In action, HB4430 relies upon the powers vested in the individual states and has a legal basis rooted upon 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. There are four Supreme Court cases upon which the anti-commandeering doctrine is based, dating back to 1842. Printz v. U.S. 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.”
We Can’t Count on D.C.
The people of America cannot expect disinclined senators and representatives in Washington to reign in mass domestic data collection and spying.
In January of 2018, Congress voted to reauthorize FISA Sec. 702. The complicit unwillingness of Congress was demonstrated to its fullest extent when the House voted to kill an amendment to FISA that would have overhauled the government’s surveillance program and addressed privacy concerns. Provisions in that amendment were reasonable modifications that adhere to the rights and protections afforded to all in the U.S. Constitution. These provisions would have required agents to obtain warrants in most cases before the hunting, capturing, reading, retention and sharing of domestic emails, communications, and other digital footprint data could be executed.
Further evidence that D.C. politicians have no desire to protect Americans from warrantless surveillance was demonstrated just one day after President Trump signed the six-year FISA extension into law. News was leaked about the now infamous, bought and paid for FISA memo that was provided to a FISA Court judge and used as the basis upon which the court granted authorization to federal agencies seeking to surveil the Trump Campaign, This memo was provided to and reviewed by members of the House Intelligence Committee prior to the vote to reauthorize FISA, however, none of this information was made available to Congress at large. The most revealing aspect is that every single Republican member of the House Intelligence Committee voted to reauthorize Sec. 702. Six of the nine Democratic Representatives came across the aisle to vote alongside their Republican colleagues.
These examples indicate that Congress cannot be relied upon to limit its invasive and unconstitutional spy programs. If the American people cannot count on Washington politicians to defend their rights, then the people’s natural recourse is to call upon the statesmanship of local legislators from one state to the next.
Why should the states get involved and how?
Federal agencies sweep up, collect and share astronomical amounts of data gathered at the state level. This is achieved through a scarcely known program called the “Information Sharing Environment” or ISE. Essentially, ISE is comprised of federal and state partnerships that facilitate federal efforts to track the movements of millions of Americans. Known ISE partners include the Office of Director of National Intelligence which oversees 17 federal agencies and organizations, including the NSA. ISE utilizes these partnerships to collect and share data on the millions of unwitting people they track. This is achieved through warrantless acquisition of phone calls, emails, web browsing history and text messages. These unconstitutional searches and seizures are often done without probable cause and in a manner that remains hidden and concealed from their targets’ knowledge.
According to its own website, 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.” To paraphrase, ISE serves as a conduit for the sharing of information gathered without a warrant.
Based on the federal government’s heavy reliance on partnerships and data sharing with state and local law enforcement agencies, passage of HB4430 has the potential to impede warrantless surveillance in Michigan. For example, if federal agents moved to engage in mass surveillance on specific groups or political organizations in Michigan, it will now have to do so without the backing, support or collaboration of state or local law enforcement agencies. This development will likely prove to be a thorny and difficult problem for the feds to overcome.
State and local law enforcement agencies routinely provide surveillance data to the federal government through ISE and Fusion Centers. They collect and store information from cell-site simulators (commonly known as “stingrays”), automated license plate readers (ALPRs), drones, facial recognition systems, and even “smart” or advanced power meters in homes and residences.
Michigan is poised to protect its residents from warrantless surveillance and mass data collection by including a prohibition on participation in the illegal collection and use of electronic data and metadata by the state. Additionally, it prohibits state and local agencies from actively assisting in warrantless surveillance operations. HB4430 effectively bans the state from acquiring or utilizing any electronic data or metadata that gets swept up, en masse, by the vast array of highly advanced spy and data gathering programs and exploits currently employed by the NSA and other federal agencies.
Reuters revealed the scope of such NSA operations in an August 2013 article. According to documents obtained by the news agency, the NSA passes information to state and local police through a formerly secret DEA unit known as Special Operations Divisions and the cases “rarely involve national security issues.” Nearly all of the information involves regular criminal investigations—often relating to the “war on drugs,” not terror-related investigations. What has been established is that the NSA, without a warrant, knowingly and intentionally collects and stores this data, culls and analyzes it in order to generate profiles on unsuspecting Americans, and then encourages state and local law enforcement to violate the Fourth Amendment by making use of this information in the course of their investigations.
Using illegally obtained evidence should be impossible to use in a court of law, however, police have developed and honed a workaround for this obstacle through a secretive process known as “parallel construction.” Parallel Construction utilizes multi-level, multi-agency, cooperative investigations conducted under a shroud of secrecy. Judicial oversight is devoid during these types of clandestine investigations. It is a common occurrence for the accused and their defense counsel to be completely in the dark about how police obtained evidentiary information. The real smoke and mirrors happen when federal agencies share intelligence obtained without a warrant to local police and then direct them to make an arrest. Using parallel construction, investigators then construct their case using normal policing techniques and getting warrants for information they’ve already obtained, illegally. These covert and deceptive procedures serve to conceal the illegally gained evidence from the court, perpetuating the illusion of a legitimate case. The entire process demonstrates absolute contempt for the rule of law.
Former NSA Technical Director William Binney called parallel construction “the most threatening situation to our constitutional republic since the Civil War.”
“You use that data to substitute for the NSA data that was originally used to arrest them. And you substitute the parallel construction data in the courtroom, which I’ve called perjury. They’re lying to the courts and they’re subverting our entire judicial process,” Binney said.
Facilities
As mentioned before, HB4430’s inclusion of material resources, as they relate to water and energy, is a critical component of this bill. The original definition of “material support and resources” included providing tangible support such as money, goods and materials, as well as less concrete support such as personnel and training. Section 805 of the PATRIOT Act expanded the definition to include “expert advice or assistance.”
How do water and electric power factor into the equation? Analysts’ assessments estimate the NSA data storage facility in Bluffdale, Utah, will use 1.7 million gallons of water every day to cool its massive servers and computers. The City of Bluffdale supplies this water based on a contract it entered into with the NSA. If Utah were to enact similar legislation, the state could turn off the water by voiding the contract or refusing to renew it. Depriving them of water would effectively nullify the existence of that facility. While this law cannot prevent the federal government from shipping in its own water, the high cost and difficult logistics render this scenario highly unlikely.
In 2006, the NSA maxed out the Baltimore-area power grid, creating the potential, as reported in the Baltimore Sun, for a “virtual shut down of the agency.” Since then, the NSA has aggressively expanded into states such as Utah, Georgia and elsewhere, generally targeting locations that can provide cheap and abundant resources. A good example of the type of environment the NSA is scouting for is the facility in Texas, where the NSA was uncharacteristically transparent about the fact that the state was chosen because of its independent power grid. The facility, erected in San Antonio, has all of its power supplied exclusively by the city-owned electric company.
NSA expansion into other states can be stopped. Bills such as HB4430 have exposed the NSA’s Achilles heel. Practically speaking, the law will almost certainly stop the NSA from ever establishing a new data collection/retention site in Michigan. The state just became far less appealing to the NSA because it is now prevented access to state or local water or power supplies. By passing identical, other states can use The Fourth Amendment Protection Act to box them in and shut them off.
If you are interested in the potential of this powerful legislation for your state, you may review the model legislation (HERE). It is ready for introduction in any state and would ban a state (and all political subdivisions) from providing material support or assistance, in any way, with any federal spying program including the NSA. This structure of The Fourth Amendment Protection Act includes, but is not limited to:
Refusing to supply water or electricity from state or locally-owned or operated utilities
A ban on all law enforcement acceptance of information provided without warrant, by the NSA, the DEA Special Operations Division, or the feds’ Information Sharing Environment.
Severe penalties for any corporations providing services for or on behalf of the state which fills the gap and provides the NSA the resources it requires to stay functional.
Clay Davis
