Don’t Think the Feds Will Rein In the NSA? Maybe the States Can Help

Construction trailers sit in front of the new National Security Agency (NSA) data center June 10, 2013 in Bluffdale, Utah. The center, a large data farm that is set to open in the fall of 2013, will be the largest of several interconnected NSA data centers spread throughout the country. The NSA has come under scutiny after two large scale data survalliance programs were leaked to the press.
National Journal
Dustin Volz
Jan. 9, 2014, 2:39 p.m.

If you are wor­ried about your pri­vacy and re­main un­con­vinced that Pres­id­ent Obama will of­fer any ser­i­ous re­forms to the Na­tion­al Se­cur­ity Agency, take heart: Le­gis­lat­ors in state­houses around the coun­try are seek­ing to take the battle over gov­ern­ment sur­veil­lance in­to their own hands.

The OffNow co­ali­tion, a group of or­gan­iz­a­tions with a liber­tari­an bend, are tak­ing a page out of the Amer­ic­an Le­gis­lat­ive Ex­change Coun­cil’s note­book and of­fer­ing up mod­el le­gis­la­tion to state law­makers in an at­tempt to dis­rupt the NSA.

“As we began to look at it, we star­ted to real­ize that the fed­er­al gov­ern­ment, as with most things, is not go­ing to lim­it it­self,” said Mi­chael Ma­harrey, spokes­man for the Tenth Amend­ment Cen­ter, an OffNow mem­ber. Cit­ing the writ­ings of Thomas Jef­fer­son and James Madis­on, Ma­harrey con­tends that the idea of states wa­ging war on the NSA “is on very strong leg­al foot­ing.”

Earli­er this week, a bi­par­tis­an duo of Cali­for­nia state sen­at­ors dropped le­gis­la­tion that would pre­vent the state from aid­ing the NSA’s col­lec­tion of phone and In­ter­net metadata on grounds it is a “dir­ect threat to our liberty and free­dom.” On the same day, a law­maker in Ok­lahoma in­tro­duced a sim­il­ar bill. Both meas­ures fea­tures four corner­stones: They would pro­hib­it state and loc­al agen­cies from help­ing the NSA with­in their jur­is­dic­tion, in­clud­ing state-owned pub­lic util­it­ies; make war­rant­less data gathered in­ad­miss­ible in state court; bar pub­lic uni­versit­ies from con­trib­ut­ing to NSA re­search or re­cruit­ment; and is­sue sanc­tions against con­tract­ors that work with the NSA.

Ari­zona has also in­tro­duced the full slate of pro­posed re­forms, ac­cord­ing to Ma­harrey. Mis­souri and Kan­sas have in­tro­duced pared-down meas­ures. Le­gis­lat­ors in Wash­ing­ton, Utah, and a few oth­er states are mulling over the mod­el le­gis­la­tion as well, Ma­harrey said.

They’ve already made strides in a hand­ful of states des­pite un­cer­tainty that what they’re try­ing to do would be con­sti­tu­tion­al. While Ma­harrey and oth­ers be­lieve the have a sol­id case, leg­al ex­perts aren’t so sure.

“If this be­comes a real battle, the fed­er­al gov­ern­ment wins, be­cause the fed­er­al gov­ern­ment al­ways wins,” said Jeremy Rab­kin, a con­sti­tu­tion­al law pro­fess­or at George Ma­son Uni­versity.

He ad­ded that he was “ex­tremely skep­tic­al” of the meas­ures be­ing pushed by OffNow, though ad­ded that the sec­tions deal­ing with state courts and uni­versit­ies could have some mer­it.

But while states can’t trump fed­er­al law, they don’t have to make things easy for the feds.

“State gov­ern­ments are free to re­frain from co­oper­at­ing with fed­er­al au­thor­it­ies if they so choose,” ex­plained Randy Barnett, a pro­fess­or at Geor­getown’s Law Cen­ter. “In gen­er­al, states can­not at­tack fed­er­al op­er­a­tions, but that’s not the same as re­fus­ing to help.”

Barnett poin­ted to the more than two dozen states that re­fused to im­ple­ment their own on­line health ex­changes un­der the Af­ford­able Care Act, leav­ing the task up to the feds in­stead, as a re­cent ex­ample of how states can de­cide to be will­fully un­help­ful even if they can’t block a fed­er­al pro­gram.

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Barnett fur­ther noted that even if the states did have leg­al au­thor­ity to pull the plug or turn off the wa­ter on the NSA, it’s un­likely they’d really want to. States like Mary­land and Utah, which house NSA fa­cil­it­ies, aren’t go­ing to try to shut them down be­cause of the huge eco­nom­ic boon they provide to the states.

Ma­harrey and oth­ers re­cog­nize the leg­al hurdles they face, but they re­main un­deterred.

“Ob­vi­ously, the NSA is go­ing to have oth­er op­tions,” Ma­harrey con­ceded. “But an or­gan­iz­a­tion that is spy­ing on vir­tu­ally every­one in the world should have life made as dif­fi­cult as pos­sible for them.”

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