LOS ANGELES - On January 7, 2014, two state senators introduced legislation in California that would block some of the practical effects of mass data collection by the National Security Agency (NSA).
Sen. Ted Lieu, a Democrat from Torrance, and Sen. Joel Anderson, a San Diego Republican, introduced the Fourth Amendment Protection Act to prohibit any state support of the NSA.
"State-funded public resources should not be going toward aiding the NSA or any other federal agency from indiscriminate spying on its own citizens and gathering electronic or metadata that violates the Fourth Amendment," Lieu said in a press release.
Based on model legislation drafted by the OffNow coalition, Senate Bill 828 would prohibit the state and its subdivisions from "Providing material support, participation or assistance in any form to a federal agency that claims the power, by virtue of any federal law, rule, regulation or order, to collect electronic data or metadata of any person pursuant to any action not based on a warrant that particularly describes the person, place and thing to be searched or seized."
Practically speaking, the bill addresses four areas where the NSA relies on state assistance to continue its programs.
It would ban state and local agencies from providing any material support to the NSA within their jurisdictions. This includes barring government-owned utilities from providing water and electricity should the NSA ever need to reach out to California for a water shortage in nearby Utah or should the NSA ever want to expand within the state.
The bill would block public universities from serving as NSA research facilities or recruiting grounds. There are six such universities in the state. It would provide sanctions against corporations attempting to fill needs not met in the absence of state cooperation.
Finally, the bill would ban the state, including local law enforcement, from engaging in information-sharing activities with the NSA.
As Reuters reported in August 2013, the secretive Special Operations Division (SOD) is "funneling information from intelligence intercepts, wiretaps, informants and a massive database of telephone records to authorities across the nation to help them launch criminal investigations of Americans."
Documents obtained by Reuters show that these cases "rarely involve national security issues" and that local law enforcement is directed by SOD to "conceal how such investigations truly begin." The California Fourth Amendment Protection Act would ban that practice within the state.
"I agree with the NSA that the world is a dangerous place," Lieu said. "That is why our founders enacted the Bill of Rights. They understood the grave dangers of an out-of-control federal government."
California joins Arizona, where Sen. Kelli Ward is expected to introduce similar legislation, with all major provisions of the Fourth Amendment Protection Act. Missouri and Kansas also have introduced legislation that covers the information-sharing part of the plan from OffNow.org.
While the NSA does not operate a data or "threat operations" center in California, Mike Maharrey, communications director of the Tenth Amendment Center, said states around the country need to pass similar legislation to make NSA expansion more difficult.
"We know the NSA has aggressively worked to expand its physical locations because it maxed out the Baltimore area power grid in 2006. They've built new locations in Utah and Texas, and expanded in several other states," Maharrey said. "Since the NSA is expanding so wildly, it's not unlikely that they're planning to build new data centers and 'threat operations centers' in other locations. California's high-tech industry makes it a likely candidate. We can't wait until the NSA opens up shop. This act yanks away the welcome mat and tells the NSA, 'We don't want you in California unless you follow the Constitution.' "
The legislation is based off the long-standing legal principle of the anti-commandeering doctrine, which prohibits the federal government from requiring, or "commandeering," the states to carry out their acts. The Supreme Court has upheld the doctrine in four major cases going back to 1842.
In the Prigg case of 1842, the Supreme Court held that the federal government was not allowed to require the states to help carry out federal slavery laws.
SB828 will first be assigned to a Senate committee, where it will need approval before going to the full state Senate for a vote. Inside sources have said to expect similar legislation introduced in the state Assembly in the coming weeks.
Further information on SB828 is available here.