JEFFERSON CITY, Mo. (April 24, 2015) – Last week, a Missouri House committee held a public hearing on a bill that would ban “material support or resources” from the state to warrantless federal spy programs.
Rep. Keith Frederick (R-Rolla) sponsors House Bill 264 (HB264). The Missouri Fourth Amendment Protection Act would ban the state and its political subdivisions from assisting, participating with, or providing material support or resources “to enable or facilitate a federal agency in the collection or use of a person’s electronic data or metadata without such person’s informed consent, or without a warrant, based upon probable cause that particularly describes the person, place, or thing to be searched or seized, or without acting in accordance with a legally-recognized exception to the warrant requirements.”
Frederick was the first legislator in the country to officially file a bill taking on the NSA for the 2015 legislative season. He prefiled HB264 way back in December. But the bill wasn’t even assigned to a committee until early April. Some insiders speculate Missouri House Speaker Rep. John Diehl drug his feet making a committee assignment, hoping the bill will not move quickly enough to pass before the session ends.
Fortunately, House Emerging Issues Committee Chair Rep. Elijah Haahr moved quickly to schedule a hearing, and it took place April 22.
Frederick said the hearing went “very well.”
The bill sponsor made a strong case for the Missouri Fourth Amendment Protection Act during the hearing, pointing out the overwhelming support for privacy protection in the Show Me State put on full display when more than 70 percent of voters approved Amendment 9 last August. That successful ballot initiative added protection of electronic data to the state constitution’s search and seizure clause.
Frederick also came up with a creative analogy to demonstrate how bulk data and information collection by the NSA flips constitutional protections against search and seizure on their heads.
“I made reference to the drug sniffing dog case just decided by the Supreme Court, and made the analogy that the NSA is using the electronic equivalent of a drug sniffing dog looking for probable cause, instead of having probable cause to allow the drug sniffing dog to sniff,” he said.
Frederick did not note any strong opposition to HB264 during the hearing, but it undoubtedly exists. In many states, law enforcement lobbyists have kept a low profile publicly while working aggressively behind to the scenes to kill the legislation.
The next step for HB264 is a committee vote. At this point, the committee chair has not placed the bill on the schedule for a vote.
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 Missouri.
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.
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.
There is little to no concrete debate about the Constitutionality of Federick’s bill, as 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.
Know 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 notable 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.”