CONCORD, N.H. (May 25, 2017) – The New Hampshire Senate killed a bill that would have banned “material support or resources” to warrantless federal spying.
Rep. Neal Kurk and Rep. Carol McGuire sponsored House Bill 171 (HB171), along with two cosponsors. The legislation would prohibit the state or its political subdivisions from assisting a federal agency in the collection of electronic data without a warrant.
Neither the state nor its political subdivisions shall assist, participate with, or provide material support or resources to enable or facilitate a federal agency in the collection or use of a person’s electronic data or metadata, without that person’s informed consent, or without a warrant issued by a judge and based upon probable cause that particularly describes the person, place, or thing to be searched or seized, or without acting in accordance with a judicially-recognized exception to the warrant requirement of the Fourth Amendment to the Unites States Constitution.
In February, the House passed HB171 by a 199-153 vote. But action in the Senate killed the bill. The Senate Executive Departments and Administration Committee deemed HB171 “inexpedient to legislate” by a 4-1 vote on May 3. The Senate affirmed the committee decision by a 17-6 margin the following week, killing the bill.
Effectively, the New Hampshire Senate approved continued state support for unconstitutional federal spying and rejected its responsibility to uphold the Fourth Amendment.
Because the federal government relies heavily on partnerships and information sharing with state and local law enforcement agencies, passage of HB171 would have hindered warrantless surveillance in the state. For instance, if the feds wanted to engage in mass surveillance on specific groups or political organizations in New Hampshire, it would have to proceed without state or local assistance. That would likely prove problematic.
The feds share and tap into vast amounts of information gathered at the state and local level through a program known as the “information sharing environment” or ISE. This includes monitoring phone calls, emails, web browsing history and text messages, all with no warrant, no probable cause, and without the people even knowing it.
According to its website (archived link), the ISE “provides analysts, operators, and investigators with information needed to enhance national security. These analysts, operators, and investigators… have mission needs to collaborate and share information with each other and with private sector partners and our foreign allies.” In other words, ISE serves as a conduit for the sharing of information gathered without a warrant.
State and local law enforcement agencies regularly provide surveillance data to the federal government through ISE and Fusion Centers. They collect and store information from cell-site simulators (AKA “stingrays”), automated license plate readers (ALPRs), drones, facial recognition systems, and even “smart” or “advanced” power meters in homes.
Passage of HB171 would have set the stage to end this sharing of warrantless information with the federal government. It would have also prohibited state and local agencies from actively assisting in warrantless surveillance operations.
By including a prohibition on participation in the illegal collection and use of electronic data and metadata by the state, HB171 would have also prohibited what NSA former Chief Technical Director William Binney called the country’s “greatest threat since the Civil War.”
The bill would have banned the state from obtaining or making use of electronic data or metadata obtained by the NSA without a warrant.
Reuters revealed the extent of such NSA data sharing with state and local law enforcement in an August 2013 article. According to documents obtained by the news agency, the NSA passes information to police through a formerly secret DEA unit known Special Operations Divisions and the cases “rarely involve national security issues.” Almost all of the information involves regular criminal investigations, not terror-related investigations.
In other words, not only does the NSA collect and store this data. using it to build profiles, the agency encourages state and local law enforcement to violate the Fourth Amendment by making use of this information in their day-to-day investigations.
This is “the most threatening situation to our constitutional republic since the Civil War,” Binney said.
The original definition of “material support or resources” included providing tangible support such as money, goods, and materials and also less concrete support, such as “personnel” and “training.” Section 805 of the PATRIOT Act expanded the definition to include “expert advice or assistance.”
Practically-speaking, the legislation would almost certainly have stopped the NSA from ever setting up a new facility in New Hampshire.
In 2006, the agency maxed out the Baltimore-area power grid, creating the potential, as the Baltimore Sun reported, for a “virtual shutdown of the agency.” Since then, the NSA aggressively expanded in states like Utah, Texas, Georgia and elsewhere, generally focusing on locations that can provide cheap and plentiful resources like water and power.
For instance, analysts estimate the NSA data storage facility in Bluffdale, Utah, will use 46 million gallons of water every day to cool its massive computers. The city supplies this water based on a contract it entered into with the spy agency. The state could turn of the water by voiding the contract, or refusing to renew it. No water would effectively mean no NSA facility.
What will stop the NSA from expanding in other states? Bills like HB171. By passing this legislation, New Hampshire would have become much less attractive for the NSA because it would not have been able to access state or local water or power supplies. If enough states step up and pass the Fourth Amendment Protection act, we can literally box them in and shut them down.
HB171 rested on a well-established legal principle known as the anti-commandeering doctrine. Simply put, the federal government cannot force states to help implement or enforce any federal act or program. The anti-commandeering doctrine is based primarily on four Supreme Court cases dating back to 1842. Printz v. US serves as the cornerstone.
“We held in New York that Congress cannot compel the States to enact or enforce a federal regulatory program. Today we hold that Congress cannot circumvent that prohibition by conscripting the States’ officers directly. The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program. It matters not whether policy making is involved, and no case by case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty.”