In August, voters in Missouri will consider Amendment 9, a state constitutional amendment that would add protection for “electronic communications and data” to its search and seizure clause.

If voters approve the measure, the search and seizure clause of the Missouri constitution will read as follows.

That the people shall be secure in their persons, papers, homes [and], 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.

In a recent Washington Post/Volokh Conspiracy Blog, NSA apologist Orin Kerr argues that the proposed amendment won’t really do anything.

Based on my read of the proposed amendment, however, I have a hard time understanding what (if any) difference the amendment would make.

I find this argument a little suspect considering Kerr recently gave the NSA metadata program the constitutional seal of approval, saying it “does not violate the rights of telephone users.” Maybe the guy who claims that bulk collection of everyone’s metadata does not violate the clear meaning of the Fourth Amendment isn’t the best person to look to for solid guidance on the proposed Missouri amendment.

Never-the-less, his arguments warrant some examination.

Kerr’s viewpoint centers on his assertion that “the Fourth Amendment already offers protections against accessing electronic data and communications.” He claims the people of Missouri already have ample protection from federal courts through the Fourth and 14th Amendment, and essentially calls the Missouri amendment redundant. Keep in mind, this same guy defended the NSA metadata program. That would seem to indicate perhaps these federal protections don’t extend quite as far as he’d like you to think.

According to federal circuit decisions, the Fourth Amendment already extends the same protection in your e-mail stored on a server somewhere that it extends to the postal mail in your home. And the government already commits the same Fourth Amendment seizure if it copies your private data and keeps the copy that it does if it takes your private papers and keeps them. In both cases, a warrant is already required.

But we know that through leaked Snowden documents that the NSA does indeed vacuum up vast amounts of personal electronic data, including emails, web browsing history and telephone metadata. The agency stores this information away (see the giant NSA storage facility in Bluffdale, Utah) and can access it an any time. Perhaps Kerr would argue this doesn’t violate the Fourth Amendment until the feds actually examine the electronic communications – and that requires a warrant. But if Kerr wants to play the postal mail game, would he argue that an FBI agent can come to your house, pull your mail out of the mailbox, make copies and store them away for later, as long as he didn’t read it in the process? Certainly not.

The fact is, the extent of federal protection of electronic data remain dubious. By making that protection explicit, Missouri would ensure a greater level of protection to its citizens than afforded by simply relying on the federal courts.

Kerr actually concedes this point, but brushes it off saying, “even if courts construe the new language as doing something new, that new thing will only restrict Missouri state and local officials. Under the Supremacy Clause, state constitutional limits do not apply to federal law enforcement.”

But Kerr misses an important practical effect of the proposed amendment that would encompass data illegally gathered by the feds. The amendment would render electronic data gathered without a warrant inadmissible in state court, and this prohibition would apply to data gathered by federal agents and shared with state and local government. True, it wouldn’t stop the feds from collecting the data, but it would make it useless to state prosecutors.

We know that NSA collects, stores, and analyzes data on countless millions of people without a warrant and without even the mere suspicion of criminal activity. We also know that the NSA tracks the physical location of people through 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.

We know that through fusion centers, state and local law enforcement act as information recipients from various federal departments under the “Information Sharing Environment”(ISE). We also know that ISE partners include the Office of Director of National Intelligence, an umbrella covering 17 federal agencies and organizations, including the NSA.

We know that 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). We know that state prosecutors use the information in criminal cases.  And, we know from a Reuters report that most of this shared data has absolutely nothing to do with national security issues. Most of it involves routine criminal investigations.

The proposed Missouri amendment would not only prohibit state and local law enforcement from gathering electronic communication data themselves, it would also prevent them from using information illegally obtained by the feds. This represents a very significant practical effect.

Kerr would have Missourians rely on the federal government alone to protect their electronic privacy. This adherence to conventional wisdom has not played out well for Americans in the past. Nobody would seriously argue that the federal government has done a good job of limiting its own power or stopping its own abuses. Missourians have the opportunity to show the rest of America that we do not have to rely on the feds to protect our rights. We can take effective, practical steps at the state level that will serve to blunt federal overreach and stop violations of our rights. Actions like this have an important political effect, moving people to seek solutions outside of the D.C. power structure. instead of relying on federal power, we undermine it.

Two NSA analysts recently testified against a California bill that would set the stage for denying state support to the NSA. During an Assembly Committee hearing, the two NSA apologist made virtually the same argument against SB828 as Kerr made against the Missouri amendment, asserting that passage “wouldn’t do anything.”

I’m not sure what this bill seeks to do. It does nothing, we don’t think it should be codified.

One has to wonder why these people go to so much trouble vocally opposing something that they believe will have no effect.

In fact, these people oppose state actions against the NSA because they don’t want them to happen. Whether actions like the Missouri Amendment will actually have a practical effect (and we know they will) or they simply create a political effect by motivating the population to further action on a state level – it doesn’t matter.  Pro NSA folks don’t favor these actions. That means if you support the Fourth Amendment, you should favor of them that much more.

Mike Maharrey

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