LITTLE ROCK, Ark. (March 12, 2023) – A bill introduced in the Arkansas House would ban “material support or resources” for warrantless federal surveillance programs. This is an essential step every state needs to take at a time when the federal government seems unlikely to ever end unconstitutional spying on its own.
Rep. Wayne Long and Rep. Matt Brown introduced House Bill 1593 (HB1593) on March 9. Titled the Arkansas Fourth Amendment Protection Act, the legislation would prohibit any state entity, including political subdivisions, from assisting, participating with, or providing material support or resources to enable or facilitate a United States Government agency in the collection or use of an individual’s electronic data or metadata, unless one or more of the following apply.
- An individual has given informed consent
- The collection of data or metadata is pursuant to a warrant based on probable cause that particularly describes the individual, place, or thing to be searched or seized
- According to a legally recognized exception to the warrant requirement.
The bill is similar to a law enacted in Michigan in 2018.
In 2014, California also passed a bill that created a foundation to prohibit state participation in federal warrantless surveillance. Some simple amendments to the law are necessary to give it a practical impact.
PRACTICAL EFFECT
The feds can share and tap into vast amounts of information gathered at the state and local level through fusion centers and a system known as the “information sharing environment” or ISE.
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 the broader 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.
Because the federal government relies heavily on partnerships and information sharing with state and local law enforcement agencies, the passage of HB1593 potentially hinders warrantless surveillance in the state. For instance, if the feds wanted to engage in mass surveillance on specific groups or political organizations in Arkansas, it would have to proceed without state or local assistance. This 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.
The passage of HB1593 would 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, HB1593 would also prohibit what NSA former Chief Technical Director William Binney called the country’s “greatest threat since the Civil War.”
The bill bans the state from “using” 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 will almost certainly stop the NSA from ever setting up a new facility in Arkansas
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 estimated the NSA data storage facility in Bluffdale, Utah, would 46 million gallons of water every day to cool its massive computers when at peak capacity. 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 HB1593. By passing this legislation, Arkansas would become much less attractive for the NSA because it will 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
The state of Arkansas can legally bar state agents from assisting with warrantless surveillance. 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.
WHAT’S NEXT
HB1593 was referred to the House Committee on State Agencies and Governmental Affairs where it must get a hearing and pass by a majority vote before moving forward in the legislative process.
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