CONCORD, N.H, (March 21, 2022) – Earlier this month, the New Hampshire House passed a bill that would require police to get a warrant before obtaining customer information from communication companies in most situations. Passage of the bill would not only protect privacy in New Hampshire; it would also hinder the federal surveillance state.
Rep. Josh Yokela (R) introduced House Bill 1282 (HB1282) on Jan. 5. The proposed law would require “communication common carriers” to be presented with a valid warrant before providing any government entity with any information related to its customers with a few exceptions.
The exceptions would be the same as the exceptions to the warrant requirement for location tracking.
A communication common carrier is “a person engaged in providing communications services to the general public through the transmission of any form of information between subscribers by means of wire, cable, radio or electromagnetic transmission, optical or fiber-optic transmission, or other means which transfers information without physical transfer of medium, whether by switched or dedicated facilities.” This would include cell phone and internet providers.
On March 10, the House passed HB1282 by a 197-137 vote.
IMPACT ON FEDERAL PROGRAMS
It has become standard practice for law enforcement agencies to upload warrantless surveillance data gathered at the state level to federal fusion centers operated by the Department of Homeland Security (DHS) and other federal agencies. Fusion centers serve as clearinghouses for all kinds of information shared between federal, state and local law enforcement agencies—including data gathered by surveillance cameras, drones, intercepted cellphone and email communications, social network spying, as well as ALPRs and other invasive modes of surveillance. The DHS funds and ultimately runs 79 fusion centers across the U.S. The DHS describes homeland security intelligence/information fusion as the ”…process of managing the flow of information to support the rapid identification of emerging terrorism-related threats requiring intervention by government and private-sector authorities.”
Fusion centers were sold as a tool to combat terrorism, but that is not how they are being used. The ACLU pointed to a bipartisan congressional report to demonstrate the true nature of government fusion centers: “They haven’t contributed anything meaningful to counterterrorism efforts. Instead, they have largely served as police surveillance and information sharing nodes for law enforcement efforts targeting the frequent subjects of police attention: Black and brown people, immigrants, dissidents, and the poor.”
Fusion centers operate within a broader federal system known as the “information sharing environment” or ISE. 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. Known ISE partners include the Office of Director of National Intelligence which oversees 17 federal agencies and organizations, including the NSA. ISE utilizes these partnerships to collect and share data on the millions of unwitting people they track.
When states limit the data and information law enforcement agencies can collect, it minimizes the amount of information and data that can end up in this federal information-sharing pipeline. Legislation such as HB87 practically hinders the operation and growth of the federal surveillance state. Simply put if the data is never gathered in the first place, it can’t be shared.
In a nutshell, without state and local cooperation, the feds have a much more difficult time gathering information. The enactment of HB1282 would strike another blow to the surveillance state and would be a win for privacy.
HB1282 will move to the Senate for further consideration. It was referred to the Senate Commerce Committee where it must get a hearing and then pass by a majority vote before moving forward in the legislative process.
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