CONCORD, N.H., July 24, 2014 – New Hampshire Gov. Maggie Hassan has signed into law a bill that not only bans state and local law enforcement from searching an electronic device without a warrant, but also prohibits a small but important category of what the NSA has been doing with the warrantless data it collects.
House Bill 1533 (HB1533) was passed unanimously by both legislative houses and was ultimately sent to Gov. Hassan’s desk last month. It bans government entities from searching “information contained in a portable electronic device” without a warrant “signed by a judge and based on probable cause.”
Any information “obtained in violation” of the new law is banned from use in any “criminal, civil, administrative, or other proceeding” in the state of New Hampshire.
Introduced by Rep. Neal Kurk, HB1533 also sets up a direct legal conflict with federal surveillance programs. It reads, in part:
“Government entity” means a federal, state, county, or local government agency, including but not limited to a law enforcement agency or any other investigative entity, agency, department, division, bureau, board, or commission, or an individual acting or purporting to act for, or on behalf of, a federal, state, county, or local government agency. “Government entity” shall not apply to a federal government agency to the extent that federal statute preempts state statute.
OffNow executive director Mike Maharrey sees the inclusion of federal agencies in this clause as an important part of the bill. “Including federal agencies in this prohibition on obtaining electronic information without a warrant does two important things,” he said. “It will force the federal courts to take a position on the constitutionality of mass federal surveillance programs, since federal statute cannot preempt if it’s not constitutional in the first place,” he said. ‘It also brings to the forefront that each state does indeed have a role to play in rejecting unconstitutional spying programs, whether they’re state or federal.”
Maharrey said that while it would be “highly improbable” for HB1533 to actually stop federal spying programs in the state, there are other parts of the bill that would have an immediate impact on the practice effect of the surveillance.
NSA collects, stores, and analyzes data on countless millions of people without a warrant, and without even the mere suspicion of criminal activity. The NSA tracks the physical location of people through their cellphones. In late 2013, the Washington Post reported that NSA is “gathering nearly 5 billion records a day on the whereabouts of cellphones around the world.” This includes location data on “tens of millions” of Americans each year – without a warrant.
Through fusion centers, state and local law enforcement act as information recipients from various federal departments under Information Sharing Environment (ISE). ISE partners include the Office of Director of National Intelligence, which is an umbrella covering 17 federal agencies and organizations, including the NSA. State and local law enforcement share data up the chain with the feds.
The NSA expressly shares warrantless data with state and local law enforcement through a super-secret DEA unit known as the Special Operations Division (SOD). That information is being used for criminal prosecutions. A Reuters report last fall showed that most of this shared data has absolutely nothing to do with national security issues. Most of it involves routine criminal investigations.
This data sharing shoves a dagger into the heart of the Fourth Amendment. HB1533 signed into law is a big first step towards preventing this from happening in the State of New Hampshire.
In New Hampshire, take the next steps to protect privacy HERE
All other states, take action HERE