CONCORD, N.H., May 9, 2014 – The New Hampshire legislature has passed a bill which bans government officials from obtaining “information contained in a portable electronic device” without a warrant “signed by a judge and based on probable cause.” The House and Senate passed slightly different versions of the bill, so a conference committee was appointed on Wednesday to get the final version of the bill to the Governor’s desk.
House Bill 1533 (HB1533) was introduced by Rep. Neal Kurk and passed both the House and Senate by unanimous voice votes. The House version includes misdemeanor penalties for a “government entity” which violates the act, and civil liability as well. The Senate version keeps the civil liability, allowing a person to sue for damages, while removing the criminal penalties. This difference is what will be worked out in a joint committee in the coming week.
Both versions set up a potential legal conflict with federal surveillance programs as well. The bill reads, in part:
“Government entity” means a federal, state, county, or local government agency, including but not limited to a law enforcement agency or any other investigative entity, agency, department, division, bureau, board, or commission, or an individual acting or purporting to act for, or on behalf of, a federal, state, county, or local government agency. “Government entity” shall not apply to a federal government agency to the extent that federal statute preempts state statute.
Tenth Amendment Center communications director Mike Maharrey sees the inclusion of federal agencies in this clause as an important part of the bill. “Including federal agencies in this prohibition on obtaining electronic information without a warrant does three important things,” he said. “It will force the federal courts to take a position on the constitutionality of mass federal surveillance programs, since federal statute cannot preempt if it’s not constitutional in the first place,” he said. ‘It also brings to the forefront that each state does indeed have a role to play in rejecting unconstitutional spying programs, whether they’re state or federal.”
Maharrey said that while it would be “highly improbable” for HB1533 to actually stop federal spying programs in the state, there are other parts of the bill that would have an immediate impact on the practice effect of the surveillance.
NSA collects, stores, and analyzes data on countless millions of people without a warrant, and without even the mere suspicion of criminal activity. The NSA tracks the physical location of people through their cellphones. In late 2013, the Washington Post reported that NSA is “gathering nearly 5 billion records a day on the whereabouts of cellphones around the world.” This includes location data on “tens of millions” of Americans each year – without a warrant.
Through fusion centers, state and local law enforcement act as information recipients from various federal departments under Information Sharing Environment (ISE). ISE partners include the Office of Director of National Intelligence, which is an umbrella covering 17 federal agencies and organizations, including the NSA. State and local law enforcement share data up the chain with the feds.
The NSA expressly shares warrantless data with state and local law enforcement through a super-secret DEA unit known as the Special Operations Division (SOD). That information is being used for criminal prosecutions. A Reuters report last fall showed that most of this shared data has absolutely nothing to do with national security issues. Most of it involves routine criminal investigations.
This data sharing shoves a dagger into the heart of the Fourth Amendment. Passage of HB1533 into law would prohibit this from happening in the State of New Hampshire.
If you live in New Hampsire, take action in support of this legislation HERE
All other states, take action HERE
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