INDIANAPOLIS, Jan. 15, 2015 – A bill filed this week in Indiana would not only support efforts to turn off NSA’s water in Utah, but have some practical effects in the Hoosier State should it pass.
Introduced on Jan. 14 by State Sen. Mike Delph (R-Carmel), the Indiana Fourth Amendment Protection Act would ban “material support or resources” from the state to warrantless federal spy programs. Senate Bill 458 (SB458) reads, in part:
It is against public policy to provide material support, participation, or assistance to any federal agency that collects, attempts to collect, or intends to collect electronic communications or metadata of any person lawfully residing in Indiana without the consent of the person, unless the collection is specifically authorized by state law or a court order based on probable cause.
“There is nothing that says states have to assist federal agencies in violating your rights,” OffNow executive director Mike Maharrey said. “The NSA depends on state assistance to carry out its illegal spying. This bill will pull the rug out from under the spy agency and hinder its efforts to violate your privacy.”
RESOURCES, SUPPORT FOR UTAH
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 would almost certainly prevent the NSA from ever setting up a new facility in Indiana.
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 has been aggressively expanding in states like Utah, Texas, Colorado and elsewhere, generally focusing on locations that can provide cheap and plentiful resources like water and power.
In a recent hearing on the Utah 4th Amendment Protection Act, a Utah state rep, intentionally or not, made a plea to other states to help out. “If Utah goes through all this trouble to turn off the water, what’s to stop the NSA from moving to another state,” he asked.
“What will stop the NSA from moving? Bills like this one introduced by Sen. Delph in Indiana,” Maharrey said. “Congress isn’t going to get the job done, and Utah can’t do it alone. State by state we can box them in and shut them down.”
By including a prohibition on participation in the illegal collection and use of electronic data and metadata by the state, SB458 would also prohibit what NSA former Chief Technical Director William Binney has called the country’s “greatest threat since the Civil War.”
The bill would 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 4th 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,” said Binney.
The bill would also set the state to end partnerships between the NSA and state universities.
Delph’s bill rests on a rock solid legal doctrine. The Supreme Court has repeatedly upheld the principle that the states cannot be required to expend 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). Noted Constitutional scholar Randy Barnett of Georgetown Law said, “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.”
Indiana joins Missouri in introducing this type of legislation for 2015. Legislators in eight other states have committed to doing the same. Sources close to OffNow indicate even more states will likely follow. The bill in Utah is being prepared for debate and discussion in the state house right now.
SB458 has been assigned to the Senate Judiciary Committee. It will need to pass there by a majority vote before the full senate can consider it.