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Bipartisan Tennessee Establishment Protects NSA Spying

Jon Lundberg, Ron Ramsey

One Tennessee Democrat joined three Republicans to kill a bill that would have prohibited the state from admitting illegally gathered data as evidence in court.

As amended, HB1907 would have barred the introduction of data or metadata in state court unless it was gathered under a warrant issued in accordance with state law; an order issued by a court of competent jurisdiction based on probable cause; an order, including wiretap orders and pen register orders as authorized by state law; or a subpoena issued or obtained pursuant to state law. The bill would not only have addressed state and local law enforcement collection of data, it would have also ended one practical effect of NSA spying, making data unconstitutionally gathered and shared by the agency inadmissible in court.

The legislation failed to clear the Civil Justice Committee on a 4-4 vote. Republicans Vance Dennis, Andrew Farmer, and John Lundberg joined Democrat Sherry Jones to kill the measure.

Originally, HB1907 encompassed the broad language of the OffNow coalition’s Fourth Amendment Protection Act, barring the state from providing any material support to a 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 pursuant to any action not based on a warrant that particularly describes the person, place and thing to be searched or seized.” Coming up against fierce opposition from law enforcement lobby and the business community, sponsor Rep. Andy Holt and Senate companion bill sponsor Sen. Stacey Campfield made the strategic decision to amend the bill and narrow its focus to data collection.

Civil Justice Committee chair Lundberg made it clear from the outset that he opposed the bill. In his opening remarks, the chairman cited concerns from an unnamed business organization.

I also have a letter from an organization, and I won’t read you the entire thing, but they’re also believing, even as amended, this could be interpreted as banning companies from doing business with the state of Tennessee, or a political subdivision. So this bill could inadvertently, I think – at least I hope you’re not trying to kill jobs in Tennessee.

The senator’s comment was curious, because the amendment language made no mention of business interests at all. This argument against the legislation was never mentioned again.

Sen. Dennis proved the most vocal opponent of the bill. He asserted that “it doesn’t do anything.”

“You have to have a search warrant unless you don’t,” he said.

Dennis went on to argue that, “The Fourth Amendment is there regardless of what of what statute is on the books,” and insisted that a court would throw out any illegally obtained evidence with or without HB1907.

Dennis clearly did not understand the intent of the bill. We know the NSA shares data with state and local law enforcement. We know from a Reuters report that most of this shared data has absolutely nothing to do with national security issues. Despite the clear Fourth Amendment ramifications, the default position seems to be that this NSA gathered data is “legal.” HB1907 would have stopped use of that evidence. It would have required Tennessee courts to toss any such information, even if the federal government declared it legal. It would have asserted the state’s legitimate authority to provide Tennesseans with greater protection than afforded by federal law. That certainly, “does something.”

Dennis also objected to a section of the bill that clarified state agencies and other entities could share data with the feds if they determined it was required by federal law. The senator misread this section and applied it to the admissibility of data in criminal proceedings, convoluting two separate issues. One section applies to the use of data in court, including information shared with state and local law enforcement by the feds. The second applies to entities sharing information back up the ladder to the feds. The section Dennis objected to had no bearing on the warrant requirements for criminal evidence.

Holt countered that even if the bill wasn’t perfect it was necessary to “put a stake in the ground.”

We want to make sure that the state of Tennessee, if we can’t have any jurisdiction anywhere outside the bounds of the state, that at least in this state, we’re going to take some effort forward and try to circumvent the federal government from violating our Fourth Amendment rights.

While expressing some concern that the bill didn’t go far enough, Democrat Rep. Mike Stewart made the best defense of state action.

The convenience of an agency should never be the basis for encroaching on the Fourth Amendment rights of American citizens, because this is not China, it’s not Singapore, and regardless of convenience of a particular bureaucracy, American citizen’s rights should take precedence over all other things.

Stewart voted to move the bill forward.

Before taking a vote, Lundberg once again expressed his opposition. He said he appreciated where Holt was coming from, but that he was concerned about, “unintended consequences.”

Holt said that the only negative consequences he could see was that the bill was not strong enough.

At one point, Holt started to read the Fourth Amendment. Lundberg cut him off in a condescending manner.

“We’re good on the Constitution. Everyone up here has read it.”

The bill appeared to pass committee on a voice vote, but Lundberg exercised his discretion as chair and called for a roll call. When the vote ended in a tie, the chair immediately declared the bill dead.

This brings us back to the concerns from business interest Lundberg voiced at the beginning of the hearing, but never again addressed. We know that companies like AT&T and Cox Communications lobbied heavily against similar bills in other states, even continuing to express opposition after amendments were offered to address their concerns. The IT Alliance for Public Sector also lobbied against the bill in at least two other states. Heavy pressure from business interests was brought to bear when the Fourth Amendment Protection Act was first introduced in Tennessee, prompting the amendment to a narrower focus. One has to wonder if Lundberg’s opposition was prompted by the business lobby. Did he kill this bill because he valued jobs more than protecting the privacy of his constituents?

We won’t ever know. The public never gets to hear the backroom discussions between lobbyists and lawmakers. But one has to wonder how anybody could oppose a bill that was simply meant to keep data gathered in a manner directly contradicting the Fourth Amendment from being used in court.

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