JEFFERSON CITY, Mo. (March 8, 2018) – Today, the Missouri House passed a bill that would ban “material support or resources” for warrantless federal surveillance programs. It would also bar the use of “stingrays” to track the location of phones and sweep up electronic communications without a warrant in most situations. This represents an essential step states need to take at a time when the federal government seems unlikely to ever end unconstitutional spying on its own.
Rep. Keith Frederick (R-Rolla) introduced House Bill 2104 (HB2104) on Jan. 11. As introduced, the legislation would help block the use of cell site simulators, commonly known as “stingrays.” These devices essentially spoof cell phone towers, tricking any device within range into connecting to the stingray instead of the tower, allowing law enforcement to sweep up communications content, as well as locate and track the person in possession of a specific phone or other electronic device.
An amendment filed by Rep. Rick Brattin (R-Harrisonville) on the House floor expanded the legislation to prohibit the state and its political subdivisions from assisting, participating with, or providing “material support or resources, to a federal agency to enable it to collect, or to facilitate the collection or use of a person’s electronic data” unless one of three conditions apply:
(a) The person has given informed consent.
(b) The action is pursuant to a warrant that is based upon probable cause and particularly describes the person, place, or thing to be searched or seized.
(c) The action is in accordance with a legally recognized exception to warrant requirements
The House passed HB2104 today on third reading, transmitting the bill to the Senate for further consideration. A vote total was not available at the time of publication, but will be added to this report later.
Stingray Provisions
HB2104 would require police to get a warrant based on probable cause before deploying a stingray device. Under the proposed law, police would be required to take all steps necessary to limit the collection of any data, metadata, communications, or other information to the target specified in the warrant. They would have to delete any such information collected from any party not specified in the warrant. Law enforcement would have to delete any data collected from the target within 30 days if there is no longer probable cause to support the belief that it is evidence of a crime.
The legislation does allow for exceptions to the warrant requirement — to find an electronic device reported stolen by the owner or user and during certain emergency situations that pose a substantial risk of serious injury or death. If a stingray is used under these exigent circumstances, police would still have to apply for a warrant as soon as practicable. If the judge denied the application, police would have to destroy all collected data. The bill also places limits on sharing of collected data.
Additionally, HB2104 would prohibit state and local police from using a stingray device to assist a federal agency without the permission of the owner of a device, or a warrant issued under the law.
Any evidence collected in violation of the law would be inadmissible in any state or federal trial, hearing or proceeding.
FISA REAUTHORIZATION
Despite concerns about warrantless surveillance in the wake of Edward Snowden’s revelations, Congress has done nothing to rein in NSA spying. In fact, it has facilitated its expansion. For instance, just last January, Congress reauthorized FISA Sec. 702.
As Andrew Napolitano explained, “the FISA-created process permits a secret court in Washington to issue general warrants based on the government’s need to gather intelligence about national security from foreigners among us. It pretends that the standard is probable cause of foreign agency, but this has now morphed into the issuance of general warrants whenever the government wants them.” A typical FISA warrant authorizes government surveillance on all landlines, mobile devices and desktop computers in a given area. While the process was created to monitor foreign agents, it sweeps up reams of data belonging to Americans.
Before approving a six-year extension of Section 702, the House voted to kill an amendment that would have overhauled the surveillance program and addressed some privacy concerns. Provisions in the amendment would have required agents to get warrants in most cases before hunting for and reading Americans’ emails and other messages that get swept up under the program.
Just one day after Trump signed the extension into law, news came out about the infamous FISA memo. This memo was available to members of the House Intelligence Committee prior to the vote to reauthorize FISA. None of this information was made available to Congress at large. Most telling, every single Republican member of the House Intelligence Committee voted to reauthorize Sec. 702, and in a heartwarming show of bipartisanship, six of the nine Democratic representatives on the committee joined their colleagues.
This is yet another indication we can’t count on Congress to limit its spy-programs.
PRACTICAL EFFECT
The feds share and tap into vast amounts of information gathered at the state and local level through a program known as the “information sharing environment” or ISE. In other words, these partnerships facilitate federal efforts to track the movements of, and obtain and store information on, millions of Americans. This includes monitoring phone calls, emails, web browsing history and text messages, all with no warrant, no probable cause, and without the people even knowing it.
According to its website, the ISE “provides analysts, operators, and investigators with information needed to enhance national security. These analysts, operators, and investigators… have mission needs to collaborate and share information with each other and with private sector partners and our foreign allies.” In other words, ISE serves as a conduit for the sharing of information gathered without a warrant.
Because the federal government relies heavily on partnerships and information sharing with state and local law enforcement agencies, passage of HB2402 could potentially hinder warrantless surveillance in the state. For instance, if the feds wanted to engage in mass surveillance on specific groups or political organizations in Missouri, it would have to proceed without state or local assistance. That would likely prove problematic.
State and local law enforcement agencies regularly provide surveillance data to the federal government through ISE and Fusion Centers. They collect and store information from cell-site simulators (AKA “stingrays”), automated license plate readers (ALPRs), drones, facial recognition systems, and even “smart” or “advanced” power meters in homes.
Passage of HB2402 could set the stage to end this sharing of warrantless information with the federal government. It would also prohibit state and local agencies from actively assisting in warrantless surveillance operations.
By including a prohibition on participation in the illegal collection and use of electronic data and metadata by the state, HB2402 would also prohibit what NSA former Chief Technical Director William Binney called the country’s “greatest threat since the Civil War.”
The bill would ban the state from obtaining or making use of electronic data or metadata obtained by the NSA without a warrant.
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 involves regular criminal investigations, not terror-related investigations.
In other words, not only does the NSA collect and store this data. using it to build profiles, the agency encourages state and local law enforcement to violate the Fourth Amendment by making use of this information in their day-to-day investigations.
This is “the most threatening situation to our constitutional republic since the Civil War,” Binney said.
NSA FACILITIES
The original definition of “material support or resources” included providing tangible support such as money, goods, and materials and also less concrete support, such as “personnel” and “training.” Section 805 of the PATRIOT Act expanded the definition to include “expert advice or assistance.”
Practically-speaking, the legislation would almost certainly deter the NSA from ever setting up a new facility in Missouri.
In 2006, the agency maxed out the Baltimore-area power grid, creating the potential, as the Baltimore Sun reported, for a “virtual shutdown of the agency.” Since then, the NSA aggressively expanded in states like Utah, Texas, Georgia and elsewhere, generally focusing on locations that can provide cheap and plentiful resources like water and power.
For instance, analysts estimate the NSA data storage facility in Bluffdale, Utah, will use 46 million gallons of water every day to cool its massive computers. The city supplies this water based on a contract it entered into with the spy agency. The state could turn off the water by voiding the contract or refusing to renew it. No water would effectively mean no NSA facility.
What will stop the NSA from expanding in other states? Bills like HB2402. By passing this legislation, Missouri would become much less attractive for the NSA because it would not be able to access state or local water or power supplies. If enough states step up and pass the Fourth Amendment Protection Act, we can literally box them in and shut them down.
LEGAL BASIS
HB2402 rests on a well-established legal principle known as the anti-commandeering doctrine. Simply put, the federal government cannot force states to help implement or enforce any federal act or program. The anti-commandeering doctrine is based primarily on four Supreme Court cases dating back to 1842. Printz v. US serves as the cornerstone.
“We held in New York that Congress cannot compel the States to enact or enforce a federal regulatory program. Today we hold that Congress cannot circumvent that prohibition by conscripting the States’ officers directly. The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program. It matters not whether policy making is involved, and no case by case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty.”
WHAT’S NEXT
HB2104 now moves to the Senate for further consideration. The bill will first need to pass out of committee before moving forward.
