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“Shut it Down!” Michigan to Consider Resource Ban to NSA

LANSING, Mich. (Dec. 16, 2015) – A bill filed in Michigan yesterday would not only support  efforts to turn off water and electricity to NSA facilities in Utah, Texas and other states, but also would have practical effects on federal surveillance programs if passed.

Rep. Martin Howrylak, along with 21 cosponsors from both sides of the political aisle, introduced House Bill 5162 (HB5162) on Dec. 15. The Fourth Amendment Protection Act would ban the state from providing material support or resources to any federal agency to enable it to collect, or to facilitate in the collection or use of a person’s electronic data or metadata, without a warrant, the person’s informed consent, or in accordance with legally recognized exceptions to warrant requirements.

RESOURCES: SUPPORT FOR UTAH, TEXAS AND OTHER NSA FACILITY STATES

The original definition of “material support or resources” includes 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 Michigan.

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.

Last year, both legislators in both Texas and Utah continued efforts to shut off resources to NSA facilities used to gather and store Americans’ data without a warrant. We expect these efforts to continue into the future.

In a hearing on the Utah Fourth Amendment Protection Act last year, 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? Legislation like HB5162. If enough states step up and pass the Fourth Amendment Protection act, we can literally box them in and 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, HB5162 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.

LEGALITY

HB5162 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

HB5162 has been assigned to the House Committee on Oversight and Ethics. It will need to pass there by a majority vote before the full House can consider it.