By Michael Boldin, Tenth Amendment Center (Twitter: @TenthAmendment)
INDIANAPOLIS, January 14, 2014 – An Indiana state senator has introduced legislation which would block some of the practical effects of mass-data collection by the National Security Agency (NSA).
Senate Bill 231 (SB231), the Fourth Amendment Protection Act, was introduced by Sen. Michael Delph to prohibit any state support of the NSA.
“We cannot allow governments to ride roughshod over the privacy rights of individuals,” Delph said. “There needs to be a check on that.“
Based on model legislation drafted by the OffNow coalition, SB231 prohibits the state of Indiana and its subdivisions from providing “material support, participation, services or assistance in any form to any federal agency…that searches, seizes, or intercepts an electronic communication without a warrant that particularly describes the person, place, and thing to be searched, seized, or intercepted.”
Following legislators in California, Oklahoma, Missouri and Kansas, Indiana is now the fifth state to consider legislation to push back against the NSA.
“State-funded public resources should not be going toward aiding the NSA or any other federal agency involved in warrantless spying on its own citizens,” said Shane Trejo, national campaign lead for OffNow. “While we cannot expect the NSA data-collection to end anytime soon, we sure can make it difficult for them to find any place to use it or even expand their programs,” he continued.
Practically speaking, the SB231 addresses three areas where the NSA relies on state assistance to continue their programs.
It would ban state and local agencies from providing any material support to the NSA within their jurisdiction. This includes barring government-owned utilities from providing water and electricity should the NSA ever want to expand within the state.
Indiana University is currently one of 166 schools around the country which the NSA has labeled a “center for academic excellence.” These university partnerships provide critical research which helps the NSA expand. Continuance of such programs would be banned should SB231 become law.
Finally, the bill would ban the state, including local law enforcement, from using in a criminal investigation or prosecution any electronic communications obtained without a warrant “that particularly describes the person, place, and thing to be searched, seized, or intercepted.”
As Reuters reported in August, 2013, the secretive Special Operations Division (SOD) is “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 obtained by Reuters show that these cases “rarely involve national security issues,” and that local law enforcement is directed by SOD to “conceal how such investigations truly begin.”
Indiana joins California and Oklahoma with a wide-reaching Fourth Amendment Protection Act addressing various areas of potential cooperation between state and local agencies. Missouri and Kansas have also introduced legislation which covers the information-sharing part of the plan from OffNow.org.
Like the Oklahoma legislation, SB231 includes criminal charges for violations. Any state agent or employee who “knowingly or intentionally” violates the act would commit a Level 5 felony, which carries a sentence of up to 1 year in prison.
While the NSA does not currently operate a data or “threat operations” center in Indiana, Tenth Amendment Center communications director Mike Maharrey said states around the country need to pass similar legislation to make NSA expansion more difficult.
“We know the NSA has aggressively worked to expand its physical locations because it maxed out the Baltimore area power grid in 2006. They’ve built new locations in Utah and Texas, and expanded in several other states,” Maharrey said. “Since the NSA is expanding so wildly, it’s not unlikely that they’re planning to build new data centers and ‘threat operations centers’ in other locations. We can’t wait until the NSA opens up shop. Passage of the Fourth Amendment Protection Act puts the NSA in a pretty tight box, one that we don’t plan to let it out of.”
The legislation is based off the long-standing legal principle of the anti-commandeering doctrine, which prohibits the federal government from requiring, or “commandeering” the states to carry out their acts. The Supreme Court has upheld the doctrine in four major cases going back to 1842.
In the Prigg case of 1842, the Supreme Court held that the federal government was not allowed to require the states to help carry out federal slavery laws.
SB231 will first be voted on in the Senate committee on Corrections and Criminal Law, where it will need to pass before being considered by the full state senate. A hearing date has yet to be scheduled.
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