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Washington Ballot Measure Would Help Protect Electronic Communications and Data from Warrantless Spying

OLYMPIA, Wash. (Jan. 11, 2017) – A bill filed in the Washington state Senate would initiate a ballot measure to amend the state constitution to declare that electronic communications and data are secure from unreasonable searches and seizures. Passage would not only help increase privacy protections in Washington, it would also hinder some federal surveillance programs.

A bipartisan coalition of 14 representatives introduced House Joint Resolution 4201 (HJR4201) on Jan. 11. If passed by both the House and the Senate by a 2/3 majority, the legislation would put a constitutional amendment on the ballot in the next general election. The proposed language would amend Article 1 Sec. 7 of the state constitution to prohibit warrantless searches and seizures that include electronic data and communications.

The people shall be secure in their persons, papers, homes, effects, and electronic communications and data from unreasonable searches and seizures; and no warrant to search any place, or seize any person or thing, or access electronic data or communication shall issue without describing the place to be searched, or the person or thing to be seized, or the data or communication to be accessed, as nearly as may be, nor without probable cause, supported by written oath or affirmation.

If approved by the legislature, the amendment would go before the voters who could make it the law of the land in Washington with a simply majority.

The amendment would vastly expand privacy protections in Washington. Currently, the state constitution doesn’t even specifically ban search and seizure of papers. The privacy protections are vaguely worded, leaving the court a great deal of discretion.

A similar amendment passed in Missouri in 2014.

Requiring a warrant to capture electronic data and communications would also hinder the federal surveillance state.

IMPACT ON FEDERAL PROGRAMS

Because the federal government relies heavily on partnerships and information sharing with state and local law enforcement agencies, passage the amendment could potentially hinder federal surveillance programs that depend on state cooperation and information gathering.

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. Requiring warrants to gather such data would undoubtedly limit the amount of information collected by state and local law enforcement. Information that doesn’t exist cannot be shared with the feds. The amendment could also potentially prohibit state and local agencies from actively assisting in warrantless surveillance operations.

Additionally, the amendment would arguably prohibit what NSA former Chief Technical Director William Binney called the country’s “greatest threat since the Civil War.”

By prohibiting state agents from “accessing” warrantless electronic data or communication, it would bar prosecutors from using such data gathered by federal agencies such as the NSA and shared with state and local law enforcement. This protection will remain in place for Missourians even if federal courts ultimately approve warrantless data collection by the NSA and other federal agencies.

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.

UP NEXT

HJR4201 was referred to the House Judiciary Committee where it will need to pass by a majority vote before moving on in the legislative process.