Vermont Bill Would Ban “Material Support or Resources” for Warrantless Federal Surveillance

By: Mike Maharrey

MONTPELIER, Vt. (March 15, 2019) – A bill introduced in the Vermont House would ban “material support or resources” for warrantless federal surveillance programs. This is an essential step every state needs to take at a time when the federal government seems unlikely to ever end unconstitutional spying on its own.

A bipartisan coalition of 12 representatives led by Rep. Felisha Leffler (R-Enosburg Falls) introduced House Bill 493 (HB493) on Feb. 28. Under the proposed law, a Vermont government entity or law enforcement officer could not “assist, participate with, or provide material support or resources to enable or facilitate a federal agency in the collection of a person’s protected user information.” In effect, it would bar state officials, including police, from assisting federal agencies with collecting private electronic communications data except under three conditions.

1. Pursuant to a probable cause warrant.
2. Pursuant to a judicially recognized exception to the warrant requirement.
3. With the person’s specific consent.

HB493 is similar to a Michigan law that went into effect last summer.

Vermont could become the third state to take action to prohibit support for warrantless federal surveillance. In 2014, California took a smaller first step when Gov. Jerry Brown signed a bill banning 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 California law needs additional steps for effectuation by defining specifically what actions constitute “illegal and unconstitutional.” The Michigan law and HB493 go further by prohibiting specific state actions and give the movement to stop unconstitutional federal surveillance more momentum.

FEDERAL SPYING CONTINUES

According to a report leaked by a Republican congressional aide, the NSA recently ended a bulk phone data collection program operated under Section 215 of the PATRIOT Act. But make no mistake, surveillance continues under other “authorities.” The program that is reportedly not being used is only a fraction of the NSA dragnet, and the Patriot Act is only one source of “authority” for federal spying. In fact, officials have admitted that “a great deal of communications-related information collected under the executive order 12333.” This Reagan-era EO provides even less oversight and transparency than Section 215.

And despite concerns about warrantless surveillance in the wake of Edward Snowden’s revelations, Congress has done nothing to rein in NSA spying. In fact, it has expended it. For instance, in January 2018, Congress reauthorized the FISA Sec. 702.

As Andrew Napolitano explained, “the FISA-created process permits a secret court in Washington to issue general warrants based on the government’s need to gather intelligence about national security from foreigners among us. It pretends that the standard is probable cause of foreign agency, but this has now morphed into the issuance of general warrants whenever the government wants them.” A typical FISA warrant authorizes government surveillance on all landlines, mobile devices and desktop computers in a given area. While the process was created to monitor foreign agents, it sweeps up reams of data belonging to Americans.

Before approving a six-year extension of Section 702, the House voted to kill an amendment that would have overhauled the surveillance program and addressed some privacy concerns. Provisions in the amendment would have required agents to get warrants in most cases before hunting for and reading Americans’ emails and other messages that get swept up under the program.

Just one day after Trump signed the extension into law, news came out about the infamous FISA memo. This memo was available to members of the House Intelligence Committee prior to the vote to reauthorize FISA. None of this information was made available to Congress at large. Most telling, every single Republican member of the House Intelligence Committee voted to reauthorize Sec. 702, and in a heartwarming show of bipartisanship, six of the nine Democratic representatives on the committee joined their colleagues.

This is yet another indication we can’t count on Congress to limit its spy-programs.

PRACTICAL EFFECT

The feds can share and tap into vast amounts of information gathered at the state and local level through fusion centers and a system known as the “information sharing environment” or ISE. In other words, stingrays create the potential for the federal government to track the movement of millions of Americans with no warrant, no probable cause, and without the people even knowing it.

Fusion centers were sold as a tool to combat terrorism, but that is not how they are being used. The ACLU pointed to a bipartisan congressional report to demonstrate the true nature of government fusion centers: “They haven’t contributed anything meaningful to counterterrorism efforts. Instead, they have largely served as police surveillance and information sharing nodes for law enforcement efforts targeting the frequent subjects of police attention: Black and brown people, immigrants, dissidents, and the poor.”

Fusion centers operate within the broader ISE. According to its website, the 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.” In other words, ISE serves as a conduit for the sharing of information gathered without a warrant. 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.

Because the federal government relies heavily on partnerships and information sharing with state and local law enforcement agencies, the passage of HB493 would potentially hinder warrantless surveillance in the state. For instance, if the feds wanted to engage in mass surveillance on specific groups or political organizations in Vermont, it would have to proceed without state or local assistance. This would likely prove problematic.

State and local law enforcement agencies regularly provide surveillance data to the federal government through ISE and Fusion Centers. They collect and store information from cell-site simulators (AKA “stingrays”), automated license plate readers (ALPRs), drones, facial recognition systems, and even “smart” or “advanced” power meters in homes.

Passage of HB493 would set the stage to end this sharing of warrantless information with the federal government. It would also prohibit state and local agencies from actively assisting in warrantless surveillance operations.

By including a prohibition on participation in the illegal collection and use of electronic data and metadata by the state, HB493 would also prohibit what NSA former Chief Technical Director William Binney called the country’s “greatest threat since the Civil War.”

The proposed law would effectively 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 does the NSA collect and store this data. using it to build profiles, the agency encourages state and local law enforcement to violate the Fourth 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,” Binney said.

NSA FACILITIES

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 will almost certainly stop the NSA from ever setting up a new facility in Vermont.

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 aggressively expanded in states like Utah, Texas, Georgia and elsewhere, generally focusing on locations that can provide cheap and plentiful resources like water and power.

For instance, analysts estimate the NSA data storage facility in Bluffdale, Utah, will use 46 million gallons of water every day to cool its massive computers. The city supplies this water based on a contract it entered into with the spy agency. The state could turn off the water by voiding the contract or refusing to renew it. No water would effectively mean no NSA facility.

What will stop the NSA from expanding in other states? Bills like HB493. By passing this legislation, Vermont would become much less attractive for the NSA because it would not be able to access state or local water or power supplies. If enough states step up and pass the Fourth Amendment Protection Act, we can literally box them in and shut them down.

LEGAL BASIS

HB493 rests on 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. The anti-commandeering doctrine is based primarily on five Supreme Court cases 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.”