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Vermont Rep Spearheading Transpartisan Effort to Take On NSA and Federal Spying

MONTPELIER, Vt. (Feb 16, 2015) – A bill filed in the Vermont House last week represents a transpartisan effort taking on the surveillance state. The legislation would not only support efforts to turn off NSA’s water in Utah, but would have practical effects on federal surveillance programs if passed.

Vermont Rep. Teo Zagar (D-Barnard) introduced H.204 on Feb. 12. His three cosponsors literally span the political spectrum, including a Republican, an Independent and a member of the Progressive Party.

The bill would ban “material support or resources” from the state to warrantless federal spy programs. Zagar emphasized the non-partisan nature of the bill

For the second biennium in a row, a Fourth Amendment Protection bill has been introduced in the Vermont House. As a reflection of the apolitical and purely Constitutional nature of the bill, our sponsors include a Democrat, a Republican, a Progressive and an Independent. We believe that Vermonters’ rights to be secure in their persons, houses, papers and effects extends to their digital information as well, and must not be infringed upon under the guise of ‘National Security At All Costs.’

The legislation bars agencies or political subdivisions of the state, their employees, or any person providing them services from providing material support for or assisting or in any way participating in the collection of a person’s electronic data or metadata by any federal agency or pursuant to any federal law, rule, regulation, or order unless the data is collected pursuant to a judicially issued warrant that particularly describes the persons, places and things to be searched or seized.”

The bill specifically prohibits the expenditure of state funds for any activity that would aid the collection of such data, and renders any information collected in violation of the law inadmissible in court.

H.204 includes penalties. A political subdivision violating the prohibitions would forfeit all state grant money, and any person working on behalf of the state found in violation of the law would “be permanently prohibited from acting on behalf of or providing services to this State or any of its political subdivisions.”

Vermont becomes the12th state to introduce legislation similar to a bill up for consideration in Utah this year.

“I’m thrilled that Vermont has joined the fight against the NSA. The transpartisan support of this bill demonstrates the fact that this issue crosses all political barriers. Nobody wants to be spied on, and people are waking up to the true danger of the surveillance state in America,” OffNow executive director Mike Maharrey said. “Sen. Frank Church warned us about the NSA 40 years ago. Did Congress step up and protect the American people? Nope. It made the NSA stronger and more intrusive than ever. If we are going to protect our privacy, we’ll have to do it ourselves, and state action provides us the tool to do it.”

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 Vermont.

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? States like Vermont pulling up the welcome mat,” Maharrey said. “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, H.204 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

Zagar’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

Vermont joins Montana, Tennessee, 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.

H.204 has been assigned to the House Judiciary Committee. It will need to pass there by a majority vote before the full House can consider it.

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