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Missouri Legislator Ups Ante in Battle Against NSA with Bill to Deny Material Support

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Missouri already has a proposed constitutional amendment pending that would end one practical effect of NSA spying. A second bill recently introduced would take the state’s fight against unconstitutional spying to the next level, barring the state from providing any material support to the NSA.

Sponsored by Sen. Wayne Wallingford, SB819 addresses two broad privacy issues. The first section titled the Fourth Amendment Protection Act would prohibit the state of Missouri from providing “material support for participation with or assistance to, in any form, any federal agency which claims the power, or which purports due to any federal law, regulation, or order, 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 or thing to be searched or seized.”

The second section of bill establishes limits and procedures on the collection, retention, use and sharing of student and teacher data.

Based on model legislation drafted by a transpartisan coalition organized by the Tenth Amendment Center (TAC) and the Bill of Rights Defense Committee (BORDC) called the OffNow Coalition, the sections of SB819 known as the Missouri Fourth Amendment Protection Act address three of the four legislative goals of the OffNow coalition.

  1. Prohibiting state and local agencies from providing any material support to the NSA within their jurisdiction. Includes barring government-owned utilities from providing water and electricity.
  2. Blocking public universities from serving as NSA research facilities or recruiting grounds.
  3. Providing sanctions against corporations attempting to fill needs not met in the absence of state cooperation

While the NSA does not currently operate a data or “threat operations” center in Missouri, Tenth Amendment Center national communications director Mike Maharrey said the Show Me State and others around the country need to pass similar legislation to make NSA expansion more difficult

“We know the NSA is aggressively expanding its physical locations, not just in Utah, but in Texas, Hawaii and other states too,” he said.  “Since the NSA isn’t transparent about its plans, it’s essential to not only address where it is today, but work to get the rest of the country to say, ‘You’re not welcome here either!’ If enough states pass this type of legislation, the spy agency will find it increasingly difficult to get the support it needs to violate your rights.”

The bill would also ultimately end the partnership between the NSA, and Missouri University of Science and Technology, and the University of Missouri.  The schools serve as NSA “Centers of Academic Excellence.” That means the spy agency uses the schools as a recruiting grounds and a research facilities. OffNow spokesperson Shane Trejo said state universities should not support an agency violating the highest law of the land.

“I understand the drive for funding a prestige. But our state universities cannot be allowed to prostitute themselves for a few federal research dollars. As long as the NSA continues to flaunt its constitutional restrains and wantonly violate basic civil liberties, state universities should not partner with them. We just don’t aid and abet criminal activity because the price is right,” he said.

The Fourth Amendment Protection Act rests on a well-established legal principle known as the anti-commandeering doctrine. Simply put, the federal government cannot “commandeer” or coerce states into implementing or enforcing federal acts or regulations – constitutional or not. The anti-commandeering doctrine rests primarily on four Supreme Court cases dating back to 1842. The 1997 case, Printz v. US, serves as the modern cornerstone. The majority opinion deemed commandeering “incompatible with our constitutional system.”

We held in New York that Congress cannot compel the States to enact or enforce a federal regulatory program. Today we hold that Congress cannot circumvent that prohibition by conscripting the States’ officers directly. The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program. It matters not whether policy making is involved, and no case by case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty.

The Missouri Fourth Amendment Protection Act would work together with a proposed state constitutional amendment moving toward approval in the Missouri legislature to addresses the fourth OffNow legislative goal. SJR 27 proposes an amendment to the state constitution that would add electronic communications to the objects protected from search or seizure without a warrant under the Missouri constitution’s search and seizure clause. If SJR27 passes out of the legislature, the amendment language will go before voters in the next general election.

The addition of electronic communications to the list of privacy items would make emails, phone records, Internet records and other electronic information gathered without a warrant inadmissible in state court. That would include data gathered illegally by overzealous state and local law enforcement as well as the federal government.

Working together, SJR27 and SB819 will hinder unconstitutional spying and immediately end one if its practical effects in Missouri.

ACTION ITEMS

In Missouri: Take action to support SJR27 and SB819 HERE.

Other states: Contact your state legislators today – urge them to introduce similar legislation.  Model bills and contact info HERE.

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