As Congress Drags its Feet, States Step Up to Legislate Against NSA Spying

Wednesday, February 05, 2014

Dissatisfied with President Barack Obama’s reforms for the National Security Agency (NSA) and Congress’ lack of progress on the same front, state lawmakers across the country are introducing legislation to limit the spy agency’s snooping on Americans.

 

To date, a dozen states ranging from Alaska to Mississippi are considering bills to limit their state’s involvement with NSA surveillance programs.

 

The effort began in Arizona, where State Senator Kelli Ward, a tea party Republican, became the first legislator in the U.S. to offer up ways to curb NSA activity at the state level.

 

Her bill, SB 1156 (pdf), would prohibit local and state law enforcement from cooperating with the NSA. It also would bar state or local prosecutors from using NSA intelligence that had not been obtained with a warrant, and cut funding to state universities supporting the NSA with research or recruitment.

 

Ward’s actions inspired legislators in other states, who introduced their own anti-NSA plans.

 

“If the feds aren’t going to address the issue, then it’s up to the states to do it,” David Taylor, a Republican in the Washington state House of Representatives whose Yakima Valley district hosts an NSA listening post, told Mother Jones.

 

His measure, which enjoys Democratic support, would cut off “material support, participation or assistance” from the state and its contractors to any federal agency that collects data or metadata on people without a warrant.

 

Last month in California, state lawmakers introduced the Fourth Amendment Protection Act (pdf), which would ban state officials from assisting the federal government in warrantless collection of metadata on Americans. The same has been done in Alaska, with one bill proposed in the House, and another in the Senate.

 

It remains to be seen whether these measures, if they become law, will stand up to a likely court challenge by the federal government.

 

Erwin Chemerinsky, dean of UC Irvine's School of Law and a constitutional scholar, says the Arizona plan would likely be struck down because the state is trying to regulate the federal government.

 

“The question here is going to be to what extent is the state interfering with the achievement of the federal objective? To what extent is the state regulating the federal government's activities?” he told the Los Angeles Times. “However well-intentioned it is, most would be preempted by federal law.... The law is clear that states can't regulate the federal government.”

 

States have a right to regulate activity within its borders, counters Michael Boldin, executive director of the Tenth Amendment Center, which provides states legislatures with model language for such bills. “If enough people in enough states say they are not going to participate in this, it will stop them from doing what they are doing,” he told the Times regarding the NSA. “It's going to box them in a corner and be more difficult for them to pull things off.”

-Noel Brinkerhoff

 

To Learn More:

Arizona Legislator Pushes Bill to Combat NSA Surveillance (by Cindy Carcamo, Los Angeles Times)

Legislators in 6 States Want to Pull the Plug on NSA Spying—Some Literally (by Josh Harkinson, Mother Jones)

California, Other States, Weighing Anti-NSA Bills (by Jacob Gershman, Wall Street Journal)

Alaska Legislation Takes Aim at Warrantless Spying by NSA, Other Federal Agencies (OffNow)

Haphazard Police Spying Across U.S. Puts Americans’ Civil Liberties in Jeopardy (by Noel Brinkerhoff, AllGov)

Senate Committee Approves Continued Bulk Spying on Americans (by Noel Brinkerhoff, AllGov)

Did Campaign Contributions Influence Representatives who Voted in Favor of NSA Phone Spying? (by Matt Bewig, AllGov)

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