A bill introduced in the Oklahoma Senate would prohibit a federal-local surveillance collaboration that the NSA’s former chief technical director called the “biggest threat since the civil war.”
Pre-filed for introduction by State Sen. Nathan Dahm (R-33), SB444 stipulates that “a government entity may not obtain the stored data or transmitted data of an electronic device without a search warrant issued by a court upon probable cause.”
In addition, SB444 mandates that “a government entity may not use, copy or disclose for any purpose the stored data or transmitted data of an electronic device that is not the subject of the warrant that is collected as part of an effort to obtain the stored data or transmitted data of the electronic device that is the subject of the warrant. ” All incidentally-gathered electronic data is to be destroyed permanently within 24 hours.
The bill allows for a few exceptions to the warrant requirement, including if the owner of an electronic device gives ‘informed and affirmative consent,’ if it is in concordance with “judicially recognized exceptions to warrant requirements,” and if the owner of the device publicly disclosed the stored or transmitted data in a voluntary manner.
Even though SB444 does not directly address data gathered by federal agencies, prohibiting state and local agencies from “obtaining” data gathered without a warrant would make warrantless data gathered by spy agencies like the NSA inadmissible in state courts. This would effectively end a practical effect of NSA spying.
NSA collects, stores, and analyzes data on countless millions of people without a warrant, without even the mere suspicion of criminal activity. The NSA also tracks 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.
Through fusion centers, state and local law enforcement act as information recipients from various federal departments under Information Sharing Environment (ISE). ISE partners include the Office of Director of National Intelligence, which is an umbrella covering 17 federal agencies and organizations, including the NSA. State and local law enforcement share data up the chain with the feds.
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). That information is being used for criminal prosecutions.
A Reuters report last fall showed 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.
In an interview last fall, former NSA technical chief William Binney called NSA information sharing “the most threatening situation to our constitutional republic since the Civil War.”
“That’s what happens when you allow this kind of assembly of information – that’s so much power. That’s like J. Edgar Hoover on super-steroids,” he said. “This is not compatible with any form of democracy at all.”
Passage of SB444 into law would prohibit this from happening in Oklahoma.