How to stop the NSA? Start with new bills at each statehouse, activists say
"Nullify NSA" wants to use state law to stop spooks. Lawyers say, "not so fast."
The NSA at night—always watching.
But even legal experts who might want some of these changes admit that states’ abilities to make an end-run around federal law is merely symbolic at best. At worst, it's perhaps illegal.
“This strikes me as bad policy, but irrespective of that, it is plainly unconstitutional under the First Amendment,” Fred Cate, a law professor at Indiana University, told Ars.
However, Cate added that while he is “wildly sympathetic with the frustration motivating these bills,” he believes this approach is misguided.
“Many of the statutes would criminalize providing ‘material support, participation, services, or assistance in any form to any federal agency’ that doesn’t use warrants when searching or seizing data," Cate said. "That exceptionally broad language would certainly include talking to, meeting with, or providing information to those agencies, all of which are protected by the First Amendment. Note that the language isn’t limited to providing assistance relating to searching or seizing data.”
For the moment, nearly all the bills that have been proposed or floated appear to come from a group calling itself “Nullify NSA.” Its website provides no contact information beyond a Twitter account and a Bitcoin address. The site provides “model legislation” at the state and local level, and it says a “campus resolution” is coming soon.
In an e-mail, “Michael B.” told Ars that Nullify NSA was organized by the Tenth Amendment Center and the Bill of Rights Defense Committee. These are groups that advocate constitutional nullification, the legal theory that an American state can nullify, invalidate, or ignore federal law that it doesn’t like.
In 1958, the Supreme Court unanimously decided in Cooper v. Aaron, a case involving de-segregation of Arkansas schools, that states do not have the right to nullify federal law. However, other Supreme Court decisions established that states cannot be compelled to expend state resources to enforce federal law and that federal authorities can enforce federal law in any state.
"Whether or not the Supremacy Clause will preempt states from adopting this policy is a legitimate constitutional pre-emption question that would require a court to resolve," Shahid Buttar, the executive director of the Bill of Rights Defense Committee, told Ars. "That court case [Printz v. United States], like this campaign, would ultimately reinforce public concerns about the NSA's authoritarian assault on the fundamental rights of millions of Americans. Presenting courts with the opportunity to decide this question will require states taking bold action to present a ripe controversy by passing these bills into law."
10 of 50 so far
By the group’s own count, 10 states have proposed some version of the “4th Amendment Protection Act,” based on the group’s state template (PDF). Those states include Arizona, California, Indiana, Kansas, Mississippi, Missouri, New Hampshire, Oklahoma, Tennessee, and Washington.On Thursday, Nullify NSA noted that a pair of related anti-surveillance bills is set to be voted on by New Hampshire's House Committee on Criminal Justice and Public Safety. If approved, they would be sent to the full state legislature.
The sample state-level legislation reads:
It is the policy of this state to refuse material support, participation, or assistance to any federal agency which claims the power, or with any federal law, rule, regulation, or order which purports to authorize the collection of electronic data or metadata of any person(s) pursuant to any action not based on a warrant that particularly describes the person(s), place(s), and thing(s) to be searched or seized.By comparison, New Hampshire’s twin bills (HB 1533 and HB 1619) impose a search warrant requirement on handing over “information contained in a portable electronic device” to government authorities.
Further, in HB 1619:
No municipal, state, or federal department, agency, employee, or contractor shall acquire, collect, or retain the personal information described in paragraph I from such providers or from others, directly or indirectly, related to customers located in New Hampshire except with a warrant signed by a judge and based on probable cause or a judicially-recognized exception to the warrant requirement. Federal officials shall be exempt from this prohibition only where federal statute preempts state statute.Ars’ attempt to contact the committee’s two top members to discuss these bills and the committee’s relationship to Nullify NSA was not immediately successful.
Nathan Dahm, a Republican state senator in Oklahoma, introduced similar legislation earlier this month.
“The legislation would prohibit any government entity at the local, county, or state level from providing assistance to the NSA,” he wrote in an online statement on January 14, 2014. “It would also forbid employees of local, county, and state government agencies and jurisdictions, as well as corporations doing business with them, from helping entities such as the NSA. It also prohibits the use of any information passed along from the NSA to local law enforcement if it was obtained in violation of the Fourth Amendment.”
“Dead on arrival”
Even if any of this legislation eventually became law, legal experts told Ars that it was questionable that they would be effective.“In terms of the constitutionality of such laws, it might be a close case,” Ruthann Robson, a law professor at the City University of New York, told Ars. “It's not that the states are 'prohibiting' NSA from acting, but the state is withdrawing its cooperation. But the Court has held that the federal government cannot conscript, dragoon, or commandeer states or state officials into doing the federal government's bidding. For example, in the 1997 Supreme Court case of Printz v. United States, the Court declared unconstitutional portions of the Brady Handgun Violence Prevention Act that required state and local officials to perform ‘background checks’ for gun purchasers. While the Tenth Amendment doesn't ‘guarantee’ states' rights, it would certainly be relied upon by advocates of the constitutionality of these NSA non-cooperation bills in state legislatures.
Hanni Fakhoury of the Electronic Frontier Foundation said that while these bills are symbolic, the individual state bills would determine how they would mesh with existing state law.
“For example, in California, evidence obtained in violation of state law is generally admissible in a criminal trial under a provision of the California Constitution known as 'Truth in Evidence,'” he said. “So for any anti-NSA law to have real teeth, the California legislature would need to pass a bill by 2/3 to get around Truth in Evidence.
“I think there are a lot of unanswered questions about whether a state would be preempted by federal law from legislating in this area. There's also some uncertainty about how a major telecom that provides services to a state agency (i.e., Verizon or AT&T being the phone provider for a state administrative office) would navigate conflicting obligations under state or federal law.”
Others went further, going so far as to declare this entire approach a fairly useless exercise.
“I am all in favor of bold actions to express disapproval of NSA activities that are illegal or inappropriate, but not if those actions are themselves unconstitutional, or threaten criminal liability for doing nothing other than complying with federal law, or seek to limit the career options of students in public universities,” added Fred Cate, the Indiana University law professor. “It would be supremely ironic if in an effort to compel the NSA to follow federal law, we compel state employees to violate that law.”
Still, as Cate observed, federal agencies already have access to a number of other tools at their disposal that are hard for anyone to ignore.
“Congress has authorized a number of avenues—national security letters, subpoenas, even ‘official requests’—for federal officials to use to access electronic communications and metadata about those communications other than warrants,” Cate noted. “The recipients of those other instruments have no choice under federal law but to comply (or to contest their authenticity in court). State laws saying that to comply with them is a criminal offense are dead on arrival.”
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