Congress failed to agree last year on a measure that would reform the practice of mass government surveillance, but privacy-minded state legislators have a back-up plan for shutting down alleged violations of their constituents’ constitutional rights.
In eight states, legislators are pushing bills they hope will either boot National Security Agency facilities or ban the agency from setting up shop. The bills would prohibit state and local governments from offering material support to the agency, including use of public utilities that carry water and electricity. Two of the bills would criminalize official cooperation with the NSA and several seek to squeeze contractors out of work with the electronic spy agency.
The state-level push began months after whistleblower Edward Snowden revealed in June 2013 the NSA’s bulk collection of U.S. phone records and Internet-mining programs.
Last year, bills in Utah – home of the NSA’s massive Utah Data Center – and Maryland – host of the agency’s Fort Meade headquarters – sought to shut down those operations, winning broad media coverage.
The Utah bill remains active and its sponsor, Republican state Rep. Marc Roberts, is cautiously optimistic about its chances, particularly after a seemingly receptive committee hearing in November.
Roberts says colleagues he’s spoken with “have concerns with the NSA programs and violations of the Fourth Amendment.” But, he says, “when it comes down to a big vote on it like this I’m not sure [what] they will do.”
Roberts is waiting to learn which legislative committee this year will hear his bill, which seeks to shut off the water supply to the NSA’s vast Utah Data Center that’s currently provided through a sweatheart deal with the city of Bluffdale.
Legislators in Alaska, Indiana, Mississippi, Missouri, Oklahoma, South Carolina and Washington, meanwhile, introduced similar bills this month, many called Fourth Amendment protection acts, based on model legislation from the OffNow coalition. More are likely to be introduced as the legislative season unfolds.
The bills generally say states and their political subdivisions cannot supply material support to federal agencies that collect citizens’ metadata without individualized warrants, and they intend to bar NSA-derived evidence from state courts and block the agency from research partnerships with state schools.
In Washington, the proposed bill goes further. It would force companies to choose between NSA and state contracts. And if state contractors or officials do provide “material support, participation, or assistance in any form” to the NSA, they would be guilty of a misdemeanor punishable by a fine of up to $5,000 and up to one year behind bars.
The bill’s sponsor, Republican state Rep. David Taylor, has an NSA facility within his district, on the U.S. Army’s Yakima Training Center. The facility, however, is reportedly slated for closure and may be immunized by its independence from state and local utilities.
But Taylor, whose seven cosponsors include six Republicans and one Democrat, says he’s heard there are other, smaller NSA facilities that would be affected. Taylor says he fears the lack of a quick death-knell to exposed NSA programs has emboldened local, state and federal law enforcement agencies to “move forward at a more rapid pace” to collect data and communications without warrants.
“We’re saying, ‘No, it’s inappropriate.’ We have a Fourth Amendment to the Constitution,” he says. “And if you violate that there’s going to be civil penalties and jail time.” Taylor is working with larger bipartisan coalitions to require warrants for use of Stingray cellphone tracking devices and to limit the use of drones.
The Oklahoma and Mississippi bills, like the Washington version, would make companies who work with the NSA “forever ineligible” to work with the state and local governments. Officials who knowingly violate the law “shall be deemed to have resigned,” all three bills propose.
Violators of the Oklahoma legislation would be guilty of a misdemeanor that carries a fine of up to $1,000 and one year in jail.
The Mississippi bill, which would not establish criminal penalties, is sponsored by state Sen. Chris McDaniel, a popular conservative leader who lost a tight Republican primary for U.S. Senate last year.
In Maryland, where the NSA recently negotiated a water deal with a county government, eight Republicans introduced a bill in February 2014 threatening to darken and dry the agency’s headquarters.No similar bill has yet been introduced this year, and it’s unclear if one’s coming.
Five cosponsors of the now-dead bill, including the lower chamber’s minority leader, bailed before it was considered in committee. The two leaders of the Maryland push lost primary races last year, and the remaining cosponsor wasn’t re-elected.
Former Maryland Del. Michael Smigiel, the bill’s lead sponsor, says his flip-flopping cosponsors lacked “enough intestinal fortitude” after pushback from federal lawmakers. One learned the NSA was in his district, he recalls.
Smigiel doesn’t believe Maryland lawmakers will reintroduce the bill, and he doesn’t mince words about his now-former colleagues.
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“I think most are busy deciding whether to put in a bill establishing a state eating utensil or how to get around the First Amendment so as to protect elected officials from being called eunuchs,” he says.
Mike Maharrey, executive director of the OffNow coalition, however, is upbeat about the broader effort. He says “we are in a much stronger position [this year] and I’ll be shocked if we don’t see at least one of these measures pass.” Maharrey says lawmakers now have a better grasp on strategy and some have tweaked their bills to win broader support.