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Washington State Legislation Would Send Question Of Electronic Privacy to Voters

Legislation filed in the state of Washington would allow voters to update the state constitution to give electronic communications and data the same protections as “persons, houses, papers, and effects.”

House Joint Resolution 4200 (HJR4200) was introduced on Jan. 15 by a bipartisan array of co-sponsors including State Reps. David Taylor (R-15), Graham Hunt (R-2), Elizabeth Scott (R-39), Matt Shea (R-4), Dan Griffey (R-35), Liz Pike (R-18), Chris Reykdal (D-22), Bob McCaslin (R-4), Vincent Buys (R-42), Roger Goodman (D-45), Larry Haler (R-8), Joe Schmick (R-9), Larry Condotta (R-12), Larry Pollet (D-46), Lynda Wilson (R-17), and Jesse Young (R-26).

If successful, the resolution would give voters the opportunity to add the following to the state constitution:

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.

By prohibiting state agents from “accessing” warrantless electronic data, it would make such data gathered by federal agencies such as the NSA and shared with state and local law enforcement inadmissible in state criminal proceedings.

This is a process that happens regularly via the “Special Operations Division.” It’s also something that whistleblower and former NSA chief technical director William Binney has called the greatest threat to “the constitutional republic since the civil war.”

HJR4200 is based off of Missouri’s Amendment 9, which passed by a near 3-to-1 margin in Aug. 2014. Missouri showed definitively that the voting public firmly approves of privacy rights protections being extended to their electronic data. Washington’s SJR4200, along with a similar constitutional amendment initiative taking place in Minnesota this year, can turn Missouri’s Amendment 9 into a trend taking the nation by storm that will modernize our freedoms and fully codify them into law.

HJR4200 will begin to address a lingering problem that has worsened for many decades. Forty years ago, even before the advent of the Internet, Sen. Frank Church warned America about the federal spy program, saying that the NSA could potentially bring about “total tyranny.” Congress had 40 years to do something to rein in the surveillance state, but failed to lift a finger. In fact, it has made things worse.

Federal courts haven’t proved much better. Judges generally defer to the Congress and the president when they justify actions as necessary due to “national security issues.” The law concerning electronic communications remains far from “settled,” and we simply cannot depend on the federal government to protect our privacy.

While state action like Washington’s cannot stop the NSA from collecting information illegally, it can protect people in that state from its practical effect. Along with barring state agents from engaging in illegal surveillance, it would prohibit state and local law enforcement from accessing warrantless data, even if federal courts ultimately place their seal of approval on mass surveillance. States can legally set a higher bar for privacy protection than the federal standard. This fact alone makes state actions such as HJR4200 a powerful and effective tool for protecting basic privacy rights.

HJR4200 can be the latest domino to fall in the emerging movement to enshrine important privacy rights protections into state constitutions across the country through ballot initiatives. Every state except Delaware can amend their state constitution through a legislatively referred referendum. We have the potential to blanket the country with constitutional provisions specifically extending privacy protection to electronic information and data. This would ensure state-level respect for privacy rights and address a practical effect of federal spying, regardless of how things play out in Congress or in federal courts.

Right now, HJR4200 is in the House Judiciary Committee. It will have to pass through that committee successfully before it can receive a full vote in the state house.

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