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Washington State Bills Would Ban Stingrays and “Material Support or Resources” to NSA

OLYMPIA, Wash. (Jan. 26, 2015) – Two bills filed in Washington state last week would not only support efforts to turn off NSA’s water in Utah, but would have immediate practical effects on mass-surveillance programs if passed.

Rep. Dave Taylor, along with 14 cosponsors, introduced HB1440 on Jan. 21. The bill primarily addresses the use of cell tower simulators, known as stingray devices, without a warrant. But the first section of the legislation would ban “material support or resources” from the state to warrantless federal spy programs.

The bill declares:

The state and its political subdivisions shall not collect or use a person’s electronic data or metadata or assist, participate in or with, or provide material support or resources for or to enable or facilitate a federal agency or the agency of another state in the collection or use of a person’s electronic data or metadata, without (1) that person’s informed consent, (2) a warrant, based upon probable cause, that describes with particularity the person, place, or thing to be searched or seized, or (3) acting in accordance with a legally recognized exception to the warrant requirements.

The longer sections on the use of stingray devices are an important part of the bill as well. These devices are phone trackers that trick a cell tower into providing information about a cell phone user. As noted by the ACLU:

Stingrays, also known as “cell site simulators” or “IMSI catchers,” are invasive cell phone surveillance devices that mimic cell phone towers and send out signals to trick cell phones in the area into transmitting their locations and identifying information. When used to track a suspect’s cell phone, they also gather information about the phones of countless bystanders who happen to be nearby.

Law enforcement agencies all over the country possess Stingrays, though their use is often shrouded in secrecy. The ACLU has uncovered evidence that federal and local law enforcement agencies are actively trying to conceal their use from public scrutiny, and we are continuing to push for transparency and reform.

Outfitting law enforcement agencies with these devices is often paid for mostly by DHS grant money. HB1440 would ban their use without a warrant in Washington State.

“The federal government is not going to check itself. We have to stop the rise of the surveillance state,” bill cosponsor Rep. Matt Shea said.

The bill enjoys bipartisan support with both Republicans and Democrats signing on as cosponsors.

“It’s not a Democratic or a Republican issue,” Shea said. “It’s a constitutional issue.

Taylor also introduced a second bill that would have an even broader effect as HB1440. HB1473 would also prohibit state agencies from providing material support or resources to the NSA, but would also address corporations providing material support to the spy agency. Any corporation supporting NSA spying would be ineligible to bid for any state contract, forcing it to choose between violating your rights and securing lucrative business opportunities with the state.

Washington joins five other states, along with Utah, in considering legislation to address unwarranted NSA spying. Seven other legislators have indicated they plan to introduce similar legislation, and sources close to OffNow indicate other states may follow suit.

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 Washington.

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? Bills like this one introduced in Washington. 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, HB1440 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

Taylor’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

Washington joins Indiana, Missouri, Mississippi, South Carolina and Alaska in introducing this type of legislation for 2015. The bill in Utah is being prepared for debate and discussion in the state House right now.

HB1440 has been assigned to the House Committee on Public Safety. It will need to pass there by a majority vote before the full House can consider it.

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