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After Committee Vote, California 4th Amendment Protect Act Faces Uphill Battle

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SACRAMENTO, Ca., August 7, 2014 – Yesterday, an important California State Assembly Committee voted unanimously to pass the 4th Amendment Protection Act. But, a new amendment to the bill would “completely kill its purpose” according to supporters.

As passed in the State Senate earlier this year, Senate Bill 828 (SB828) would ban 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, without consent, of any person not based on a warrant that particularly describes the person, place, and thing to be searched or seized.”

Introduced by Sen. Ted Lieu (D-Torrance) and Sen. Joel Anderson (R-San Diego), SB828 has received strong support from members of both political parties.  The State Senate approved it by a vote of 29-1.

After moving to the lower chamber for concurrence, State Assembly Member Mike Gatto (D-Los Angeles), who is the powerful chair of the Appropriations Committee, signed as the sponsor to carry the bill in the Assembly.

But, before being voted on in his committee yesterday, an amendment was introduced that totally changed the nature and intent of the bill.

“The Senate version set up a straightforward 2-step process,” said Mike Maharrey, executive director of the Off Now Project. “First, pass the bill banning resources to illegal and unconstitutional mass surveillance. Then, upon an official state determination on constitutionality of those data-collection programs, the ban on material support or resources would go into effect,” he said.

CHANGES

Maharrey went on to explain that the amended version passed by the Assembly Appropriations Committee was far different. “By shrewdly including just a few very specific legal terms, as the bill currently reads, it will do absolutely nothing. Ever,” he said. “But the legislative process is far from over, and the Senate version still stands as passed.  It’s essential for people to demand that the Senate reject this version moving through the Assembly,” he continued.

The major changes to the Assembly version of the bill include:

  • REQUESTS ONLY: A stipulation that a ban on material support or resources would only be in response to actual requests from the federal government to the state of California to assist in the collection of electronic data or metadata without a warrant. Since federal agencies rarely, if ever, ask for help from states to conduct their business, this change alone, according to Maharrey, would render the bill to “zero effect” in practice.
  • ACTUAL KNOWLEDGE: The amended version now requires that the state posses “actual knowledge” of the unconstitutionality of the electronic data collection before the ban on material support or resources goes into effect. The phrase “actual knowledge” is a legal term of art that holds an unusually high bar for such a bill.

Maharrey explained that these two legal phrases could still result in a ban on material support or resources to federal agencies engaged in mass electronic data collection, but that it is “so unlikely, that it will probably never happen.”

That scenario would be after a Supreme Court ruling that the programs are unconstitutional, along with continued federal data collection programs in defiance of that Court ruling, and a specific request by the federal government to the state of California to assist in that collection of electronic data or metadata.

“This scenario just isn’t going to happen, so we need to pressure the Senate to reject the Assembly version or urge the Governor to veto the bill,” said Maharrey.

TRUST: A DIFFERENT APPROACH

Regarding knowledge of constitutionality, Maharrey pointed out that this isn’t even required before state policy is made banning voluntary participation in a federal program. Under the long-established legal principle known as the anti-commandeering doctrine, states are simply not required to provide material support or resources to the federal government.

For example, the recently passed TRUST Act, a 2013 law banning the state from voluntarily participating in some parts of the federal Secure Communities Program, has no requirement to even determine constitutionality at all before the ban on participation goes into effect.

Maharrey noted the stark difference between the approach of the TRUST Act and the amended SB828.

“It is now law in California that the state will not respond to a significant number of federal deportation hold requests under Secure Communities,” said Maharrey. “California legislators didn’t first need ‘actual knowledge’ of a constitutional violation before passing this law. They simply said that participation was not in the policy interests of the state. They could certainly do the same in regards to mass surveillance programs,” he said.

NEXT STEPS

SB828 now moves on to the Assembly floor for full debate and vote. It will first go to a “second reading” where amendments can be proposed. From there, it gets a “third reading” and a final vote. If it passes in a different form, in any way, than the Senate version, the Senate will be asked whether to accept the Assembly version or not. If they accept, that version goes to Gov. Brown for a signature. If they reject, the two chambers appoint members to meet in a “conference committee” to work out the differences or accept the Senate version. From there, it may require final votes in one or both chambers before getting to Brown’s desk.

Maharrey suggested three paths for 4th Amendment supporters:

  • Find a strong Assembly member willing to introduce a floor amendment strengthening the bill or returning it to the Senate version.
  • Urge key Senate members, including Lieu and Anderson, to reject the current Assembly version
  • Plan on calling for a veto if the Assembly version gets sent to Gov. Brown.

Further assembly action could come anytime in the next few weeks.

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