The National Security Agency may be able to spy on citizens by collecting data about their telephone calls and Internet usage, but at least two states are developing a strategy that would leave the data largely unusable without a warrant.
The newly revealed practices of the NSA to monitor all telephone calls made by American citizens could even be found in violation of the Missouri state constitution.
Several court cases that could eventually reach the U.S. Supreme Court have been filed since former NSA contractor Edward Snowden leaked information about the program
Lawmakers in several states, however, aren’t waiting.
According to the Tenth Amendment Center, lawmakers in Missouri are proposing to amend their state constitution. Their plan would add “and electronic communications and data” to the provision that provides privacy and security for residents.
If changed by voters, it would read: “That the people shall be secure in their persons, papers, homes [and], effects, and electronic communications and data, from unreasonable searches and seizures; and no warrant to search any place, or seize any person or thing, or access electronic data or communication, shall issue without describing the place to be searched, or the person or thing to be seized, or the data or communication to be accessed, as nearly as may be; nor without probable cause, supported by written oath or affirmation.”
The Joint Resolution, pending before the state Senate, proposes allowing Missouri voters to decide next November whether or not to amend their constitution.
According to the Tenth Amendment Center, federal judges and lawyers may squabble over the constitutionality of the NSA data-gathering, but lawmakers could make it impossible for any information obtained to be used in those states.
In Kansas, Rep. Brett Hildabrand, R-Shawnee, prefiled a bill that would “ban all state agencies and local governments in the state from possessing data ‘held by a third-party in a system of record’ and would prohibit any such information from being ‘subject to discovery, subpoena or other means of legal compulsion for its release to any person or entity or be admissible in evidence in any judicial or administrative proceeding.’”
The access the data, under the bill, government would be required to obtain “express informed consent” or a warrant.
In Kansas, it’s called the Fourth Amendment Protection Act.
“I want to make sure that electronic privacy in Kansas is protected in the same way that physical letters in the mail are protected from random government searches,” Hildabrand told the center. “Each day, we hear a new revelation about how the NSA is violating our personal privacy. My bill will ensure the state of Kansas doesn’t utilize this illegally obtained data.”
Hildabrand noted that USA Today reported early in December that more than 100 police agencies in 33 states now use technology “to intercept and catalog the electronic communication of average, law-abiding citizens.”
“We must be ever-vigilant that their rights are not being infringed upon by big government taking advantage of advances in technology,” he said.
In Missouri, voters soon might be able to decide on the proposed state constitutional amendment.
Reuters said last August that the NSA’s secretive Special Operations Division was “funneling information from intelligence intercepts, wiretaps, informants and a massive database of telephone records to authorities across the nation to help them launch criminal investigations of Americans.”
Documents revealed such cases “rarely involve national security issues” and that the SOD directs local law enforcement to “conceal how such investigations truly begin.”
“The bottom line is the federal government doesn’t limit itself,” said Center Communications Director Mike Maharrey. “Realistically, the federal courts have a strong track record of deferring to federal agencies when they claim ‘national security issues,’ so we can’t count on them to uphold the intent of the Fourth Amendment. That’s why it’s crucial for state governments to step into the gap and protect the most basic rights of their citizens. Rep. Hildabrand’s bill and the proposed Missouri constitutional amendment do just that.”
The Tenth Amendment Center noted Arizona state Sen. Kelli Ward announced recently she was introducing an even broader bill to deny material support to the NSA in the Grand Canyon State.
That effort fits into a campaign by Offnow.org, which encourages states to not allow the physical services that the NSA needs to operate.
For example, regarding a new NSA facility in Utah, the campaign notes the new data center, “a massive spy complex, requires 1.7 million gallons over water every single day to operate.”
“Those massive supercomputers monitoring your personal information are water-cooled. They can’t function without the resources to keep them at operating temperature. That water is scheduled to be provided by the Jordan Valley River Conservancy District, ‘a political subdivision of the state of Utah.’
“Because of this, a state law can be passed banning this partnership. In short, they can turn the water off,” the group said.
The Tenth Amendment Center said other states have related moves in under way.
In California, Sen. Ted Lieu, D-Torrance, and Sen. Joel Anderson, R-San Diego, have introduced the Fourth Amendment Protection Act to prohibit any state support of the NSA.
“State-funded public resources should not be going toward aiding the NSA or any other federal agency from indiscriminate spying on its own citizens and gathering electronic or metadata that violates the Fourth Amendment,” Lieu said.
The plan would prohibit the state of California and its subdivisions from providing “material support, participation or assistance in any form to a federal agency that claims the power, by virtue of any federal law, rule, regulation or order, to collect electronic data or metadata of any person pursuant to any action not based on a warrant that particularly describes the person, place and thing to be searched or seized.”
It also bars any state funding to the NSA or any entity supporting it in the state.
OffNow.org national campaign lead Shane Trejo said there are “four strategic points where states can take action to thwart the effect of NSA spying: provision of resources, university partnerships, corporate sanctions, and information-sharing. Each bill introduced is an important piece of the puzzle.”
WND reported recently that Sen Rand Paul, R-Ky., is planning a class-action lawsuit against the NSA over the spying after recruiting thousands of people to be plaintiffs.
The news follows last month’s favorable ruling in a class-action legal challenge to NSA spy operations by attorney Larry Klayman, founder of Freedom Watch. In that case, the federal judge said the spy program is likely unconstitutional. The Obama administration has filed an appeal.
The senator’s campaign website was used to recruit names, a move set up after Paul suggested months ago he could force the government to change its strategies if he could get 10 million Americans to protest.
In a commentary for WND, Klayman welcomed Paul’s influence to the fight.
“I invite Sen. Paul to join our ongoing class actions, as they have already proven to be successful in large part – given Judge Leon’s unconstitutionality ruling. The other plaintiffs and I are pleased that Paul also is fighting to slay the NSA express,” Klayman wrote.
“The bottom line is this: I am pleased that the force of our legal actions with regard to the NSA and this huge violation of constitutional rights has finally caused many in the nation to take heed of the strength of our cases. For what is now occurring with this spy agency, and others like the CIA, cannot stand. We the people cannot allow a tyrannical government to run roughshod over our Fourth, First and Fifth Amendment constitutional rights. Our Founding Fathers risked their fortunes and lives to win freedom. We owe it to them to take whatever legal steps we must to preserve this freedom for ourselves, our loved ones, and the country as a whole.”
It was Judge Richard J. Leon, in two class-action cases that Klayman filed last June, who ruled against the NSA.
“I hereby give the government fair notice that should my ruling be upheld, this order will go into effect forthwith,” the judge wrote. “Accordingly, I fully expect that during the appellate process, which will consume at least the next six months, the government will take whatever steps necessary to prepare itself to comply with this order when, and if, it is upheld. Suffice it to say, requesting further time to comply with this order months from now will not be well received and could result in collateral sanctions.”
The judge said the practice likely is unconstitutional, calling it “Orwellian.”