AUSTIN, Texas (March 16, 2015) – A Texas legislator introduced a bill that would stop the independent Texas power grid from being used to power mass, warrantless surveillance by the NSA last week.
Rep. Jonathan Stickland (R) introduced House Bill 3916 (HB3916) on March 13. The legislation would prohibit any political subdivision in Texas from providing water or electricity to any federal agency “involved in the routine surveillance or collection and storage of bulk telephone or e-mail records or related metadata concerning any citizen of the United States and that claims the legal authority to collect and store the bulk telephone or e-mail records or metadata concerning any citizen of the United States without the citizen’s consent or a search warrant that describes the person, place, or thing to be searched or seized.”
“No water and no electricity means no super-computers. That will shut down NSA operations in Texas. If Congress doesn’t want to reform the NSA then we’ll just turn it off,” OffNow founder and associate director Michael Boldin said.
If passed, HB3916 would ultimately turn off water and electric service to the massive Texas Cryptologic Center in San Antonio.
In 2006, the Baltimore Sun reported that the NSA had maxed out capacity of the Baltimore-area power grid via Baltimore Gas and Electric. Insiders reported that “The NSA is already unable to install some costly and sophisticated new equipment. At minimum, the problem could produce disruptions leading to outages and power surges. At worst, it could force a virtual shutdown of the agency.”
This, in part, led the NSA to expand in new locations in states such as Utah and Texas, to ensure that the agency could keep expanding its programs without the risk of shutting down due to lack of resources.
A former Sony warehouse, just down the road from a new Microsoft data center, houses the NSA facility. According to the Houston Chronicle, Corporate Office Properties Trust (COPT), a publicly traded company based in Maryland, owns the property and leases it to the NSA.
The federal government keeps the Texas Cryptologic Center shrouded in secrecy. According to the Houston Chronicle story, “Longtime observers of the intelligence agency say they believe the San Antonio plant has a mission similar to the agency’s other new facilities in Georgia and Hawaii, where communications intercepted by NSA are translated and then sent to headquarters in Maryland for analysis.”
“No longer able to store all the intercepted phone calls and e-mail in its secret city, the agency has now built a new data warehouse in San Antonio, Texas,” writes author James Bamford in the Shadow Factory, his third book about the NSA. “Costing, with renovations, upwards of $130 million, the 470,000-square-foot facility will be almost the size of the Alamo Dome. Considering how much data can now be squeezed onto a small flash drive, the new NSA building may eventually be able to hold all the information in the world.”
City-owned CPS Energy provides electric service to the facility. According to the company website, it counts as the United States’ largest municipally owned utility company, with combined natural gas and electric service. It remains unclear exactly what entity supplies the center’s water, but the San Antonio Water System provides water service to most of San Antonio.
Passage of HB3916 would prohibit both companies from supplying resources to the NSA facility.
HB3916 rests on a rock-solid legal doctrine. The Supreme Court has repeatedly upheld the principle that the states cannot be required to supply resources or manpower to help the federal government carry out its acts or programs.
Known as the anti-commandeering doctrine, the legal principle rests primarily on four Supreme Court opinions dating back to 1842. In Prigg v. Pennsylvania (1842), Justice Joseph Story held that the federal government could not force states to implement or carry out the Fugitive Slave Act of 1793. He said that it was a federal law, and the federal government ultimately had to enforce it.
The fundamental principle applicable to all cases of this sort, would seem to be, that where the end is required, the means are given; and where the duty is enjoined, the ability to perform it is contemplated to exist on the part of the functionaries to whom it is entrusted. The clause is found in the national Constitution, and not in that of any state. It does not point out any state functionaries, or any state action to carry its provisions into effect. The states cannot, therefore, be compelled to enforce them; and it might well be deemed an unconstitutional exercise of the power of interpretation, to insist that the states are bound to provide means to carry into effect the duties of the national government, nowhere delegated or instrusted to them by the Constitution.
Other key cases include New York v. United States (1992), Printz v. United States (1997), and Independent Business v. Sebelius (2012).
“State governments are free to refrain from cooperating with federal authorities if they so choose. In general, states cannot attack federal operations, but that’s not the same as refusing to help,” Noted Constitutional scholar Randy Barnett of Georgetown Law said.
In practice, HB3916 would prohibit state or local-owned utilities from supplying water or electric service to NSA facilities in the state. The bill does include a provision allowing for the municipality to repay any bonds payable from pledged revenue from water or electric service before discontinuing such service. A political subdivision would be able to fulfill any contractual obligations currently in place, but would be prohibited from any contract extensions.
Passage into law would be a powerful step towards ending the bulk, warrantless surveillance of all electronic communications.
HB3916 will first be assigned to a House committee, where it will need to pass by majority vote to move forward.