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Vermont Bill Would Ban “Material Support” for Warrantless Federal Surveillance

MONTPELIER, Vt. (Jan. 12, 2018) – A bill introduced in the Vermont House would ban material support and resources for warrantless federal spying. Passage of the legislation would not only help protect privacy in Vermont, it would help hinder unconstitutional federal surveillance.

Rep. Barbara Rachelson (D-Burlington) introduced House Bill 364 (H.364) last year and it will carry over to the 2018 session. The legislation would prohibit the state from assisting or participating in the collection of electronic data or metadata by the federal government without a warrant, or from using any such information.

Notwithstanding any law to the contrary, an agency or political subdivision of this State, an employee of an agency or political subdivision of this State acting in his or her official capacity, or a person providing services behalf of this State or a political subdivision of this State shall not provide material support for or assist or in any way participate in the collection of a person’s electronic data or metadata by any federal agency or pursuant to any federal law, rule, or order unless the data are collected pursuant to a judicially issued warrant that particularly describes the persons, places, and things to be searched or seized.

The legislation would also ban the use of any state funds, or funds received from the state, to engage in activities that assist the federal government with warrantless spying.

H.364 would specifically prohibit using any warrantless data collected by the federal government in a criminal investigation or prosecution.

Any state subdivision found violating the law would lose state grant funds the following year. The legislation also includes penalties on individuals violating the law.

A person providing services to or on behalf of this State who violates subsection (b) of this section shall thereafter be permanently prohibited from acting on behalf of or providing services to this State or any of its political subdivisions.

FISA REAUTHORIZATION

Despite concerns about warrantless surveillance in the wake of Edward Snowden’s revelations, Congress has done nothing to rein in NSA spying. On Thursday, the House voted to reauthorize Section 702 of the FISA Amendments Act. The Senate is expected to follow suit.

As Andrew Napolitano explained, “the FISA-created process permits a secret court in Washington to issue general warrants based on the government’s need to gather intelligence about national security from foreigners among us. It pretends that the standard is probable cause of foreign agency, but this has now morphed into the issuance of general warrants whenever the government wants them.” A typical FISA warrant authorizes government surveillance on all landlines, mobile devices and desktop computers in a given area. While the process was created to monitor foreign agents, it sweeps up reams of data belonging to Americans.

Before approving a six-year extension of Section 702, the House voted to kill an amendment that would have overhauled the surveillance program and addressed some privacy concerns. Provisions in the amendment would have required agents to get warrants in most cases before hunting for and reading Americans’ emails and other messages that get swept up under the program. This is yet another indication we can’t count on Congress to limit its spy-programs.

PRACTICAL EFFECT

The feds share and tap into vast amounts of information gathered at the state and local level through a program known as the “information sharing environment” or ISE. In other words, these partnerships facilitate federal efforts to track the movements of, and obtain and store information on, millions of Americans. This includes monitoring phone calls, emails, web browsing history and text messages, all with no warrant, no probable cause, and without the people even knowing it.

According to its website, the ISE “provides analysts, operators, and investigators with information needed to enhance national security. These analysts, operators, and investigators… have mission needs to collaborate and share information with each other and with private sector partners and our foreign allies.” In other words, ISE serves as a conduit for the sharing of information gathered without a warrant.

Because the federal government relies heavily on partnerships and information sharing with state and local law enforcement agencies, the passage of H.364 could potentially hinder warrantless surveillance in the state. For instance, if the feds wanted to engage in mass surveillance on specific groups or political organizations in Vermont, it would have to proceed without state or local assistance. That would likely prove problematic.

State and local law enforcement agencies regularly provide surveillance data to the federal government through ISE and Fusion Centers. They collect and store information from cell-site simulators (AKA “stingrays”), automated license plate readers (ALPRs), drones, facial recognition systems, and even “smart” or “advanced” power meters in homes. Passage of H.364 could set the stage to end this sharing of warrantless information with the federal government. It would also prohibit state and local agencies from actively assisting in warrantless surveillance operations.

By prohibiting the use of warrantless data obtained by the feds and shared with state and local law enforcement, H.364 would address a practical aspect of NSA spying that former Chief Technical Director William Binney called the country’s “greatest threat since the Civil War.”

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 (SOD) and the cases “rarely involve national security issues.” Almost all of the information involves regular criminal investigations, not terror-related investigations.

The SOD works with state and local law enforcement to “create” an investigation, working backward to obscure the origin of the evidence. For instance, the SOD might instruct local police to obtain a warrant to collect information they already have via information sharing. It creates the illusion that the investigation and prosecution proceeded in a constitutionally permissible way

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.

NSA FACILITIES

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, H.364 would almost certainly stop the NSA from ever setting up a new facility Washington and would set the stage to shut down any operating in the state.

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, Georgia and elsewhere, generally focusing on locations that can provide cheap and plentiful resources like water and power.

For instance, analysts estimate the NSA data storage facility in Bluffdale, Utah, will use 46 million gallons of water every day to cool its massive computers. The city supplies this water based on a contract it entered into with the spy agency. The state could turn off the water by voiding the contract or refusing to renew it. No water would effectively mean no NSA facility.

What will stop the NSA from expanding in other states? Bills like H.364.  By passing this legislation, Vermont would become much less attractive for the NSA because it would not be able to access state or local water or power supplies. If enough states step up and pass the Fourth Amendment Protection Act, we can literally box them in and shut them down.

LEGAL BASIS

H.364 rests on a well-established legal principle known as the anti-commandeering doctrine. Simply put, the federal government cannot force states to help implement or enforce any federal act or program. The anti-commandeering doctrine is based primarily on four Supreme Court cases dating back to 1842. Printz v. US serves as the cornerstone.

“We held in New York that Congress cannot compel the States to enact or enforce a federal regulatory program. Today we hold that Congress cannot circumvent that prohibition by conscripting the States’ officers directly. The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program. It matters not whether policy making is involved, and no case by case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty.”

WHAT’S NEXT

California Gov. Jerry Brown signed a limited version of the Fourth Amendment Protection Act in 2014. The law prohibits state cooperation when a federal agency “requests” state assistance in data collection if there exists “actual knowledge that the request constitutes an illegal or unconstitutional collection of electronically stored information.” Although that law will need further steps to put into practical effect, it set a strong foundation that H.364 would expand on for Vermont.

H.364 was referred to the House Judiciary Committee where it will need to pass by a majority vote before moving on in the legislative process.