In the post-Snowden, National Security Agency revelations in the United States, it appears states have stepped up to the plate to offer their constituents protections against warrantless surveillance.
With the federal government yet to implement any sort of protection following the NSA revelations, states are issuing legislation intended to thwart any federal surveillance programs. Notably, Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) and Rep. Jim Sensenbrenner (R-Wisc.) introduced a piece of legislation that would “restore Americans’ privacy rights by ending the government’s dragnet collection of phone records and requiring greater oversight, transparency, and accountability with respect to domestic surveillance authorities.”
Known as the USA FREEDOM Act, the legislation would “end the dragnet collection of Americans’ phone records under Section 215 of the USA PATRIOT Act — which allows the FBI to order any person or entity to hand over any tangible item to protect against international terrorism or clandestine intelligence activities — and ensures that other authorities cannot be used to justify similar dragnet collection.”
The bill, which boasts 16 co-sponsors from both sides of the aisle, would also implement safeguards to ensure that the U.S. government does not conduct warrantless surveillance. One of those safeguards includes creating a Special Advocate position to ensure the protection of Americans’ privacy rights and civil liberties. Detailed public reports about the type and frequency of Foreign Intelligence Surveillance Act orders would also be required.
Since that bill has yet to pass, states such as Indiana, Maryland, Minnesota, Oregon, Pennsylvania, Rhode Island, Tennessee, Vermont, Washington and West Virginia, among others, have decided to take charge themselves.
Arizona was among one of the first states to propose such legislation, when this past December, Republican state Sen. Kelli Ward proposed legislation that would make it nearly impossible for the NSA to operate in the state.
Known as the Fourth Amendment Protection Act, and inspired by a template from the Tenth Amendment Center, Ward’s bill would prohibit state and local agencies from providing the NSA with any material, which means that all government-owned utilities would be prohibited from providing NSA offices with water and electricity.
Additionally the bill would make any information gathered by the NSA without a warrant inadmissible in state court, would block public universities from serving as NSA research facilities or recruiting grounds, and any corporations that try to provide resources denied by the state to the agency will become ineligible for state and local government contracts or work.
Ward recently said her legislation isn’t a “blanket anti-NSA bill.”
“If NSA activities are constitutional we are all for it,” she said. “But if they are collecting information on private citizens with no evidence of crimes being committed that is something me and many of the people I represent are against.”
Last week, the Massachusetts Supreme Judicial Court ruled that law enforcement are no longer able to surveil the metadata of a mobile phone or track a mobile phone without first obtaining a warrant. Legislators in New Hampshire are considering implementing a similar law that would make warrantless searches of a portable device a misdemeanor.
Meanwhile, Kansas lawmakers have introduced legislation that would limit electronic eavesdropping capabilities by prohibiting state and local government from “possessing or attempting to possess” information without first obtaining a search warrant.
Law enforcement officials are pushing back, however, saying that information they routinely use such as motor carrier documents and driving records would now require a search warrant, which they say would be costly. Others have expressed concern that law enforcement officials may be largely impaired from performing their duties, as even an Internet search may require a search warrant.
In Virginia, legislative efforts that would rein in the use of license plate data were delayed after Democratic state Sen. Chap Petersen asked for additional studies and changes in the bill’s wording.
Privacy advocates pushing for the changes say they understand technology is a useful tool, but they add that the government’s unregulated use of technology can impede the ability of citizens to live in a free, democratic nation.
However, others argue that the state laws are a waste of time because the federal government’s collection of data may not be impeded in the slightest, as the supremacy clause in the U.S. Constitution says that federal statutes and U.S. treaties are “the supreme law of the land.”
In other words, federal law trumps state law.
Since the constitutionality of the mass surveillance has been questioned, whether Americans’ Fourth Amendment rights were violated may be an issue the U.S. Supreme Court will have to decide once and for all.