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Oklahoma Privacy Protection Act Takes on Federal Spying

OKLAHOMA CITY  (Jan. 30, 2015) – A bill pre-filed in Oklahoma would not only support efforts to turn off NSA’s water in Utah, but would have immediate practical effects on the implementation of some federal surveillance programs if passed.

Oklahoma Rep. Lewis Moore (R-Arcadia) introduced the “Oklahoma Privacy Protection Act,” a bill that would ban “material support or resources” from the state to warrantless federal spy programs. Oklahoma counts as the seventh state to introduce legislation similar to a bill up for consideration in Utah this year.

HB1738 goes a step beyond the 2015 model language drafted by OffNow. It not only bars state cooperation with agencies like the NSA, it also address corporations that provide material support to the spy agency. Any corporation supporting NSA spying would be ineligible to bid for any state contract, forcing it to choose between violating your rights and securing lucrative business opportunities with the state.

The legislation also includes penalties. Any state agency or subdivision violating the law would become ineligible for state grant funds, and individuals convicted of violating the law would be guilty of a misdemeanor. Additionally individuals who violate the law “shall be deemed to have resigned any commission from the State of Oklahoma which he or she may possess…and he or she shall be forever thereafter ineligible to any office of trust, honor or emolument under the laws of this state.”

“Sen. Frank Church warned us about the NSA 40 years ago and Congress still hasn’t done anything to rein it in. In fact, it’s made the agency stronger and more intrusive,” OffNow executive director Mike Maharrey said. “Since we can’t count on D.C. to protect our privacy, we have to find another way. This is it. The NSA depends on state support. The states don’t have to provide it. So, I say if the politicians in D.C. won’t reform the NSA, yank all support, box the spies in and shut them down.”

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 Oklahoma.

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 to other states? Bills like this one” Maharrey said. “Each state that passes the Fourth Amendment Protection act pulls up another welcome mat. We can literally box them in and force reform – or else shut them down.”

PRACTICAL EFFECT

By including a prohibition on participation in the illegal collection and use of electronic data and metadata by the state, HB1738 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.

LEGALITY

Moore’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 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.”

WHAT’S NEXT

Oklahoma joins Indiana, Missouri, Washington state, South Carolina, Mississippi, Alaska and Utah in considering this type of legislation for 2015. Legislators in five other states have committed to doing the same. Sources close to OffNow indicate even more states will likely follow. The bill in Utah is being prepared for debate and discussion in the state House right now.

HB1738 is scheduled for a first reading on Feb. 2 and will likely receive a committee assignment at that time.

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