BOSTON (Oct. 9, 2015) – A privacy bill that would prohibit collection of electronic data from communication service providers without a warrant in most cases, and that would effectively block an NSA data sharing program, continues to work its way through the Massachusetts legislature.

Last spring, a bipartisan coalition of 36 legislators introduced Senate Bill 903 (S903). The legislation would prohibit any Massachusetts government agency, including law enforcement, from obtaining personal electronic records from a third party provider without either a judicially issued warrant or subpoena, with only a few exceptions. This would effectively block what NSA former Chief Technical Director William Binney called the country’s “greatest threat since the Civil War.”

Under the proposed law, electronic records include information that can alone or in combination serve to identify a customer using a communication service, data stored by or on behalf of a customer, records of service, payment records, any communication content, IP addresses and location information.

Exceptions to the warrant or subpoena requirement include express permission by the owner of the electronic records, response to an owner’s request for emergency service and a law enforcement agency acting on the  reasonable belief that an emergency exists involving the immediate danger of death or serious physical injury, as long as police meet certain requirements.

S903 includes specific language detailing stringent requirements judges must follow in granting a warrant or subpoena, and specific reporting proceedures.

The legislation makes any information collected in violation of the law inadmissible in court.

“Except in a judicial proceeding alleging a violation of this section, no information obtained in violation of this section shall be admissible in any criminal, civil, administrative or other proceeding.” [Emphasis added]

This includes evidence “obtained” through information sharing by federal agencies, effectively putting a stop to one practical effect of NSA spying in Massachusetts.

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 applies to regular criminal, not terror related investigations.

In other words, not only does the NSA collect and store this data, using it to build profiles on millions of innocent Americans, federal agencies also encourage state and local law enforcement to violate the Fourth Amendment by making use of this information in day-to-day investigations. The feds then advise state prosecutors to create “parallel investigations” to hide the true source of the information.

This is “the most threatening situation to our constitutional republic since the Civil War,” Binney said.

Mike Maharrey

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