NASHVILLE, Tenn. (Feb. 13, 2015) – On Wednesday, Tennessee legislators filed legislation to directly take on NSA spying by withholding vital state resources and material support from any federal agency engaged in warrantless surveillance.
Sen. Mae Beavers (R-Mt. Juliet) introduced SB782 in the Tennessee Senate and Rep. James Van Huss (R-Jonesborough) and Rep. Matthew Hill (R-Jonesborough) introduced an identical companion bill (HB679) in the House. The legislation would ban “material support or resources” from the state to warrantless federal spy programs.
This state and its political subdivisions shall not assist, participate with, or provide 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:
(1) The person’s informed consent;
(2) A search warrant issued by a duly authorized court upon probable cause that particularly describes the person, place, or thing to be searched or seized; or
(3) Acting in accordance with a legally recognized exception to the warrant requirements.
A long-standing secretive NSA computing facility calls Oak Ridge, Tenn. home. According to NSA researcher James Bamford, the NSA runs most data it gathers “from code breaking to word captures,” through computers at Oak Ridge and NSA headquarters in Ft. Meade, Md.
Passage of the Tennessee Fourth Amendment Protection Act would set the stage to cut resources to NSA programs at Oak Ridge, and support efforts to turn off NSA’s water in Utah. The legislation would also have other practical effects in the Volunteer State.
The Multiprogram Research Facility (MRF) sits discreetly on the East Campus of the Oak Ridge National Laboratory. Inside this top secret facility, NSA researchers work to build High Productivity Computers. The goal: make machines fast enough to crack encryption.
Numerous sources report the MRF will work in tandem with the data storage center in Utah. The super-fast computers in Oak Ridge could conceivably break the encryption on reams of data stored in Bluffdale, making its contents accessible to the NSA. This includes data of Americans vacuumed up by the spy agency.
“The main thing to understand is that this bill would deny warrantless federal surveillance programs state support. People might be concerned because they see value in Oak Ridge. But if passed, this legislation would only ban material support of activities the state ultimately determines are part of illegal, warrantless mass-surveillance,” Tenth Amendment Center national communications director Mike Maharrey said. “The real question is: do Tennesseans want to support unwarranted spying or not?”
OTHER PRACTICAL EFFECTS
By including a prohibition on participation in the illegal collection and use of electronic data and metadata by the state, the Tennessee Fourth Amendment Protection Act 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.
The two Tennessee bills rest 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.”
Tennessee joins Montana, Iowa, Arizona, Oklahoma, Indiana, Missouri, Washington state, South Carolina, Mississippi, Alaska and Utah in introducing this type of legislation for 2015. Legislators in two 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.
SB782 and HB679 will first be assigned to a committee, where they will need to pass by majority vote to move forward.