AUGUSTA, Maine (March 1, 2015) – A bill filed in the Maine Senate late last week represents a transpartisan effort taking on the surveillance state. The legislation would not only support efforts to turn off NSA’s water in states where a physical NSA facility is located, but would also have immediate practical effects on how surveillance is used in some situations.
Sen. Eric Brakey (R-Androscoggin) introduced LD531 On Feb. 26. His seven cosponsors literally span the political spectrum, including Republicans, Democrats and an Independent.
The Maine Fourth Amendment Protection Act would ban “material support or resources” from the state to any federal agency collecting electronic data without meeting one of three conditions.
- That person’s informed consent;
- A warrant based upon probable cause that particularly describes the person, place or thing to be searched or seized; or
- Acting in accordance with a legally recognized exception to the warrant requirements.
“People focus so much on partisan issues, but this crosses all of those political barriers. Nobody wants to be spied on. It’s encouraging to see Republicans, Democrats and Independents setting aside differences to face a threat menacing every American.” OffNow executive director Mike Maharrey said. “Sen. Frank Church warned us about the NSA 40 years ago. Did Congress step up and protect the American people? Nope. It made the NSA stronger and more intrusive than ever. If we are going to protect our privacy, we’ll have to do it ourselves, and state action provides us the tool to do it.”
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 stop the NSA from ever setting up a new facility in Maine.
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 aggressively expanded 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 Fourth 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? States like Main yanking up the welcome mat,” Maharrey said. “If enough states find the will to pass the Fourth Amendment Protection act, we can literally box them in and force reforms – or else shut them down.”
By including a prohibition on participation in the illegal collection and use of electronic data and metadata by the state, LD531 would also prohibit what NSA former Chief Technical Director William Binney 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 Fourth 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,” Binney said.
The bill would also set the stage to end partnerships between the NSA and state universities.
Brakey’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 summed up the substance of the anti-commandeering doctrine.
“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.”
Maine joins Vermont, Montana, Tennessee, Iowa, Arizona, Oklahoma, Indiana, Missouri, Washington state, South Carolina, Mississippi, Alaska and Utah in introducing this type of legislation for 2015. Legislators in another state have committed to doing the same. The bill in Utah is being prepared for debate and discussion in the state House right now.
LD531 was referred to the Committee on Judiciary. It will need to pass there by a majority vote before the full Senate can consider it.