SACRAMENTO, Calif. (Nov. 30, 2022) – In 2014, California Gov. Jerry Brown signed a bill into law that created a foundation to prohibit state participation in federal warrantless surveillance. Now is the time for the California state legislature to take the next step. A few simple amendments would make the law effective in practice.

Then-State Sen. Ted Lieu (D) introduced SB828 in the wake of the Edward Snowden revelations on NSA spying. As overwhelmingly passed in the California Senate, the bill banned the state from participating in, or providing material support or resources to any federal agency engaged in the “illegal and unconstitutional collection of electronic data or metadata, without consent, of any person not based on a warrant that particularly describes the person, place, and thing to be searched or seized.”

The Senate version passed 29-1 and set the stage to turn off state resources to agencies engaged in illegal spying.

But the bill ran into some speed bumps in the Assembly. Sources close to the Tenth Amendment Center indicated that the California Sheriffs Association lobbied heavily behind the scenes in opposition to the bill. An assembly committee ultimately amended the legislation to include language that creates an extremely high threshold before the state can take action to refuse cooperation with the NSA or other agencies engaged in illegal spying.

Under the law as enacted:

“The state shall not provide material support, participation, or assistance in response to a request from a federal agency or an employee of a federal agency to collect the electronically stored information or metadata of any person if the state has actual knowledge that the request constitutes an illegal or unconstitutional collection of electronically stored information or metadata.” [Emphasis added]

Under the law, the state can only deny material support when a federal agency specifically “requests” state assistance with data collection. This doesn’t typically happen. State and local police participate in federal spying in a myriad of ways during the normal course of daily business. No formal request is necessary. For instance, the city of Bluffdale, Utah, supplies water to the NSA data facility there. This supports NSA warrantless spying even though the federal government didn’t ever technically request the state “to collect the electronically stored information or metadata of any person.”

More problematic is the stipulation that the state has “actual knowledge” that the request constitutes an illegal search. In the first place, the legal threshold for “actual knowledge” is extremely high and difficult to prove. Second, in order to have “actual knowledge,” a federal court would have to declare the search to be illegal. This is unlikely. One of the biggest problems with the federal surveillance state is that courts have generally rubber-stamped it.

It’s difficult to come up with a scenario in which the law as chaptered would have any practical effect. That’s not to say there isn’t one, but it would become operative only in a very narrow range of circumstances. The California legislature can make a few simple fixes to the law to give it practical effect.

First, simply remove the words “in response to a request.” Second, replace the requirement for “actual knowledge” with a specific definition of an illegal search.

“The state shall not provide material support, participation, or assistance to a federal agency or an employee of a federal agency to collect the electronically stored information or metadata of any person unless one or more of the following circumstances apply: (a) The person has given informed consent. (b) The collection or use of the electronic data or metadata is pursuant to a warrant, based upon probable cause, that particularly describes the person, place, or thing to be searched or seized. (c) The collection or use of the electronic data or metadata is in accordance with a legally recognized exception to the warrant requirements.

Specifically defining the circumstances requiring a withdrawal of material support would take all of the guesswork out of implementing the law. Government officials wouldn’t be burdened with making a determination of legality. The circumstances that the law applies would be black and white.

It has been nearly a decade since Snowden revealed the extent of illegal, warrantless, NSA spying. In that time, little has changed. California took the first step back in 2014. Given the lack of progress on the federal level, it’s time for states to step in and stop supporting these egregious violations of the Fourth Amendment. California led the way then. It has the opportunity to lead again today.

EFFECTIVE

The federal government relies heavily on state cooperation to implement and enforce almost all of its laws, regulations and acts – including surveillance. By simply withdrawing this necessary cooperation, states and localities can nullify many federal actions in effect. As noted by the National Governors’ Association during the partial government shutdown of 2013, “states are partners with the federal government on most federal programs.”

Based on James Madison’s advice for states and individuals in Federalist #46, a “refusal to cooperate with officers of the Union” represents an extremely effective method to bring down federal spying because most enforcement actions rely on help, support and leadership from state and local governments.

“Partnerships don’t work too well when half the team quits,” said Michael Boldin of the Tenth Amendment Center. “By withdrawing all resources and participation in warrantless surveillance, states and even local governments can help bring these unconstitutional acts to their much-needed end.”

LEGAL BASIS

The state of California can legally bar state agents from participating in federal data collection. Refusal to cooperate with federal enforcement 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 five Supreme Court cases dating back to 1842. Printz v. U.S. 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”

No determination of constitutionality is necessary to invoke the anti-commandeering doctrine. State and local governments can refuse to enforce federal laws or implement federal programs whether they are constitutional or not.

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