by Michael Maharrey
As I sit down to write this, lawmakers in states around the country have introduced bills designed to thwart NSA spying at the state and local level.
The media attention primarily focuses on provisions in the Fourth Amendment Protection Act that deny material support by the state to the NSA. In places like Utah, where a subdivision of the state supplies water to the spy agency’s data center, this could mean turning off the flow. No water equals no cooling for the facility’s gigantic computers. This provision certainly makes up an important part of the OffNow coalition strategy and it probably counts as the most “sexy.” Thus the media attention.
But, another oft-overlooked provision will likely have a much more immediate and dramatic effect on a state level. Along with prohibiting state agencies from providing material support or assistance to NSA spying, the legislation also makes any warrantless data shared with the state by federal spies inadmissible in state court. This will mitigate one of the worst practical effects of the NSA spy program.
All states which have introduced our model 4th Amendment Protection Act have a provision in their bill to do just that. Some states, not ready to take on all four steps against federal surveillance, have legislation to focus on just this one important part of the strategy. In fact, lawmakers in Kansas, Missouri, New Hampshire and elsewhere are considering bills specifically addressing this kind of data sharing. Others, like Illinois and Minnesota, have legislation to ban the state from “obtaining” cell phone location data without a warrant.
Why is this so important?
Well, we know that NSA collects, stores, and analyzes data on countless millions of people without a warrant, and without even the mere suspicion of criminal activity. We also know that the NSA is tracking the physical location of people through their cellphones. In late 2013, the Washington Post reported that NSA is “gathering nearly 5 billion records a day on the whereabouts of cellphones around the world.” This includes location data on “tens of millions” of Americans each year – without a warrant.
We know that, through fusion centers, state and local law enforcement act as information recipients from various federal departments under Information Sharing Environment (ISE). We also know that ISE partners include the Office of Director of National Intelligence, which is an umbrella covering 17 federal agencies and organizations, including the NSA.
We know that the NSA expressly shares warrantless data with state and local law enforcement through a super-secret DEA unit known as the Special Operations Division (SOD). We know that information is being used for criminal prosecutions. And, we know from a Reuters report that most of this shared data has absolutely nothing to do with national security issues. Most of it involves routine criminal investigations.
This data sharing shoves a dagger into the heart of the Fourth Amendment. The Fourth Amendment Protection Act would stop that from happening.
Of course, as with any legislative strategy, prohibiting the use of shared NSA data has its naysayers. The feds cloak the entire SOD program with secrecy. In fact, according to the Reuters article, the SOD encourages state and local law enforcement to hide the origins of information they receive.
Although these cases rarely involve national security issues, documents reviewed by Reuters show that law enforcement agents have been directed to conceal how such investigations truly begin – not only from defense lawyers but also sometimes from prosecutors and judges.
Knowing this, detractors call our strategy useless.
“How would anybody know where the info came from if it’s all secret? Prohibiting sharing won’t stop anything,” they say.
There exists an easy rhetorical response. Most major crimes take place in secret. Does that mean we should place no prohibition on murder because criminals try to cover it up and get away with it?
Of course not!
But practically speaking, prohibiting the use of unconstitutionally gathered data in court will incentivize defense attorneys to dig more deeply into the origins of evidence. As the Reuters report indicates, that makes the feds nervous and results in dropped charges.
As a practical matter, law enforcement agents said they usually don’t worry that SOD’s involvement will be exposed in court. That’s because most drug-trafficking defendants plead guilty before trial and therefore never request to see the evidence against them. If cases did go to trial, current and former agents said, charges were sometimes dropped to avoid the risk of exposing SOD involvement.
Furthermore, if defense attorneys know they will automatically get evidence tossed if they can prove it was gathered by the feds without a warrant, they will work a lot harder to determine where exactly information came from. Make no mistake, attorneys will uncover illegally gathered evidence when they know it will lead to acquittals.
So, further defining this type of data as inadmissible in court will undoubtedly increase the protection of basic civil liberties.
While states may not have the means to completely stop NSA spying, they certainly have the power to minimize some of its practical effects. Where this opportunity exists, states should take it.