Michigan Committee Holds Hearing on Bill to Ban “Material Support or Resources” for Warrantless Federal Surveillance

LANSING, Mich. (Nov. 29, 2017) – Yesterday, I testified before the Michigan House Committee on Judiciary in support of a bill that would ban “material support or resources” for warrantless federal surveillance programs, an essential step for states to take in a time when the federal government seems unlikely to ever end their own spying.

Rep. Martin Howrylak (R-Troy) introduced House Bill 4430 (HB4430) on March 28. The legislation would prohibit the state and its political subdivisions from assisting, participating with, or providing “material support or resources, to a federal agency to enable it to collect, or to facilitate in the collection or use of a person’s electronic data” unless one of three conditions apply:

(a) The person has given informed consent.
(b) The action is pursuant to a warrant that is based upon probable cause and particularly describes the person, place, or thing to be searched or seized.
(c) The action is in accordance with a legally recognized exception to warrant requirements.

Following is my testimony.

In 1975, Sen. Frank Church warned us about the U.S. surveillance state, saying that it had the potential for “total tyranny.”

Let that sink in for just a moment. That was 40 years ago. Before everybody used email. Before cell phones. Before widespread use of the internet. If the potential for total tyranny existed in 1975, where are we today?

And yet, Congress has still not taken any action – in 40 more than years.

That’s why it’s imperative that you take this concrete step to support the Fourth Amendment.

The effect of HB4430 is very straightforward. It simply withdraws state support when a federal agency engages in illegal, warrantless electronic surveillance.

Now, there are a couple of questions you may be asking yourself.

First – does the state really have the authority to withhold material support from the federal government?

The answer to this question is an emphatic yes.

HB4430 rests on a well-established legal principle known as the anti-commandeering doctrine. Simply put, the federal government cannot force states to help implement federal programs or enforce federal acts. The anti-commandeering doctrine is based primarily on four Supreme Court cases dating all the way back to 1842.

Simply put, the state of Michigan has every right and authority to determine how it will utilize its personnel and resources. It can withhold material support from the federal government – even if the federal government is pursuing a perfectly constitutional policy.

The Second question is more philosophical than legal. Why should we even take a stand on this? Why is it our business to question the federal government?

Simply put – this is a fundamental role of the state. In 1807, Connecticut Gov. John Trumbull said

“Whenever our national legislature is led to overleap the prescribed bounds of their constitutional powers, on the State Legislatures, in great emergencies, devolves the arduous task – it is their right – it becomes their duty, to interpose their protecting shield between the right and liberty of the people, and the assumed power of the General Government.”

The US constitution is the fundamental law of the land. You each swore an oath to support the Constitution of the United States and the constitution of Michigan.

We know from documents released by Edward Snowden, and from the testimony of other whistleblowers like Bill Binney, that federal agencies DO engage in warrantless surveillance. This is not some kind of theoretical abstraction. It happens. And when it does, the state of Michigan should not be complicit.

A yes vote for 4430 is a vote for the Fourth Amendment. It’s a vote for the Constitution. It’s a vote for the rule of law. I urge you to cast that vote.

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