Citing the 10th Amendment and support from the Tenth Amendment Center (TAC), the California Assembly Public Safety Committee voted unanimously to approve a bipartisan bill which creates a mechanism to turn off all material support and assistance, including water and electricity resources, from California to federal mass surveillance programs. The vote was 5-0.
Dubbed the 4th Amendment Protection Act, Senate Bill 828 (SB828) passed the State Senate last month by a vote of 29-1, and is just two votes away from reaching Gov. Brown’s desk. If signed into law, it would ban 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 executive summary of the bill cites the legal authority being claimed to enact the bill into law. Along with the 4th and 14th Amendments, it specifically references the 10th Amendment::
Existing law States that the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people. (U.S. Const., 10th Amend.)
Argument in Support : The Tenth Amendment Center states, “Recent revelations make it clear that the NSA operations violate the Constitution on a daily basis. The Fourth sets up clear parameters for searching and seizing personal information. The founders chafed under general warrants issued by the British government that allowed random searches at the whim of the authorities. The NSA operates in much the same manner, thrusting a dagger into the heart of the Fourth Amendment’s intent.
“While California cannot bar the NSA from operating within its borders, it does not have to cooperate with or support the agency. The well-established anti-commandeering doctrine, holding that the federal government cannot coerce or compel states to implement or enforce federal regulations or programs, puts SB828 on firm legal footing.”
Sponsored by Sen. Ted Lieu (D-Torrance) and Sen. Joel Anderson (R-San Diego), SB828 represents a growing opposition to NSA spying on a state and local level, and across the political spectrum.
“The NSA’s program is an unreasonable search and seizure of Californian’s electronic data and communications,” said Lieu. Anderson took a similar position on the Senate floor last month. “We want to protect against terrorism, but it should never be at the cost of our liberty or freedom,” he said.
Lobbying for no votes were the California State Sheriffs Association (CSSA) and two former NSA analysts. The opposition claimed that the bill should not be passed due to uncertainty of what the bill does. A representative for the CSSA said, “I’m not sure what this bill seeks to do. It does nothing, we don’t think it should be codified.”
The same message was repeated by the first of the former NSA analysts. “I’m not sure what this bill does. I’ll try to be specific. Who decides whether the collection of data is legal or not. Who makes that decision?” He also asked two direct questions, “Who decides whether the collection of data is legal or not. Who makes that decision? Is the NSA going to be required to explain if that data is on a specific person or investigation?”
In response, Sen. Lieu explained that “state officials would make that decision” regarding constitutionality. He also said that the bill targets “dragnet surveillance of all 300 million Americans,” and that “If they have a warrant or reasons for a specific person it would not address that. They can’t ask for a data base,” he said.
Practically speaking, SB828 addresses three major areas where NSA and other federal agencies rely on local support to carry out their surveillance programs. This includes resources such as water and electricity for physical facilities, university research partnerships, and sharing of warrantless data.
While the NSA does not currently operate a data or “threat operations” center in California, OffNow spokesman Shane Trejo 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,” Trejo 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. California’s high-tech industry makes it a likely candidate. We can’t wait until the NSA opens up shop. This act yanks away the welcome mat and tells the NSA, ‘We don’t want you in California unless you follow the Constitution.’”
Six California state universities have partnerships with the NSA. These university partnerships provide critical research which helps the NSA expand. The California Fourth Amendment Protection Act also addresses the status of these schools as NSA “Centers of Academic Excellence.” Continuance of such programs would be banned after passage of SB828 should NSA surveillance be determined as illegal and unconstitutional.
Finally, the bill would address the use of warrantless data from the federal government in state or local criminal proceedings.
As reported by Reuters in Aug. 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.”
Reports in the Washington Post and USA Today last fall documented how “the FBI and most other investigative bodies in the federal government” are regularly using a mobile device known as a “stingray” to intercept and collect electronic data without a warrant. Local and state police “have access through sharing agreements.”
Passage of the bill would be the first step in a process to ban resources to the NSA. If signed into law, once an official determination is made that a federal agency is engaging in illegal and unconstitutional collection of electronic data or metadata, the state ban on resources would immediately go into effect.
Both NSA analysts acknowledged that while the bill wouldn’t shut down NSA programs, it could slow them down. “Most of the work they do, they have capabilities to do anyway,” said one analyst.
Trejo considered this positive. “We know that one state passing this bill isn’t going to shut down the NSA, but it’s going to have an effect right of the bat,” he said. “Based on what the analyst said, we can be confident that some of the work they do, they do not have the capability to do without state help. And that’s the goal of this bill,” he said.
Trejo said that passage into law will result in a strong foundation being set. “California could set a serious precedent with this law. And once five or ten other states pass similar bills, the NSA is going to have a serious problem on their hands.” he said. “One step and one state at a time, we are working to box the NSA into a corner they can’t get out of.”
SB828 is now moves to the State Assembly Appropriations Committee. Should it pass there, it will go on to final debate and vote on the Assembly floor.
Michael Boldin is the founder of the Tenth Amendment Center where this article first appeared. He was raised in Milwaukee, WI, and currently resides in Los Angeles, CA. Follow him on twitter – @michaelboldin, on LinkedIn, and on Facebook.