Forum Post: How Can the States Provide Fourth Amendment Protection Against the NSA?
Posted 10 years ago on Nov. 15, 2013, 4:34 p.m. EST by LeoYo
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How Can the States Provide Fourth Amendment Protection Against the NSA?
Friday, 15 November 2013 11:03 By Michael Boldin, Truthout | Op-Ed
In her 2004 Brooklyn Law Review article, Ann Althouse offered some powerful suggestions on how to resist "anti-terrorism" powers, such as the Patriot Act, and should be seen as a guide to resisting NSA spying:
The fight against terrorism has raised concerns that the federal government has overreached its legitimate power. Concerns about racial profiling, invasions of privacy, unreasonable searches, and infringement on free speech have fueled a political movement, led by groups such as the American Civil Liberties Union and the Bill of Rights Defense Committee (BORDC), urging state and local government to adopt resolutions directing their officials not to participate in at least some aspects of the antiterrorism effort.
More on applying this to the NSA in a moment. First, is this legal?
The Doctrine
The ACLU and BORDC resolutions against the Patriot Act (and subsequent ACLU-backed state laws refusing to comply with the 2005 REAL ID Act) were based on a widely accepted legal principle known as the "anticommandeering doctrine."
This means the federal government cannot require a state to carry out federal acts. The federal government can pass a law and try to enforce it, but your state isn't required to help them.
The US Supreme Court has repeatedly affirmed anticommandeering, relevant court cases being:
1842 Prigg: The court held that states weren't required to enforce federal slavery laws.
1992 New York: The court held that Congress couldn't require states to enact specified waste disposal regulations.
1997 Printz: The court held that "the federal government may not compel the states to enact or administer a federal regulatory program."
Under this doctrine, Althouse noted that "state and local government officials, if they have the nerve, will be able to decline to carry out the anti-terrorism tasks Congress or the president attempts to assign to them."
Applied to NSA
This can have a significant impact on the NSA's ability to continue its mass-spying programs.
In 2006, the Baltimore Sun reported that the NSA had maxed out the capacity of the Baltimore-area power grid:
The NSA is already unable to install some costly and sophisticated new equipment. At minimum, the problem could produce disruptions leading to outages and power surges. At worst, it could force a virtual shutdown of the agency.
To get around the physical limitation of the amount of power required to monitor virtually every piece of communication around the globe, the NSA started searching for new locations with independent resources.
A location was chosen in San Antonio because of the independent power grid in Texas. The new Utah Data Center was chosen for access to cheap utilities, primarily water. The water-cooled supercomputers there require 1.7 million gallons of water per day to function.
That water is being supplied by a political subdivision of the State of Utah. Under the anticommandeering doctrine, Utah isn't required to provide that water.
No water = No NSA data center.
But it's not just Utah, and it's not just water. The war on drugs, for example, is a major benefactor of NSA data collection. According to the Electronic Frontier Foundation (EFF), the DEA's Special Operations Division works closely with the NSA, passing "tips" along to local law enforcement and instructing them to cover their tracks so the public doesn't learn where the information came from.
EFF calls this "intelligence laundering," which flat-out "bypasses the Constitution."
The Act
Following the lead of the ACLU and BORDC, model legislation to refuse cooperation with the NSA is now available for introduction in your state. The 4th Amendment Protection Act would ban states like Utah from providing water, or Texas from providing electricity, to NSA data centers. It would also ban law enforcement from receiving "tips" from the DEA's special operations division. In addition, the Act prevents state-run universities from partnering with the NSA. Currently there are 166 so-called "Centers of Academic Excellence" around the country. These schools are major research and recruiting centers for the agency.
Corporations could find themselves in trouble, too, under the proposed Act:
Any corporation or person that provides services to or on behalf of this state and violates the prohibitions of Section 2 of this act shall be forever ineligible to act on behalf of, or provide services to, this state or any political subdivision of this state.
As a result, corporations like Georgia Power, Rocky Mountain Power, Big-D Construction or Intercontinental Hotels just might give pause before signing a new contract to provide services to the NSA.
Can It Work?
This same process was used effectively by northern abolitionists in resistance to the Fugitive Slave Act of 1850. Today, states like Washington and Colorado are helping end the war on cannabis by refusing to comply with federal prohibition.
We should follow their courageous path against the NSA as well. Calling your state representative and senator today and encouraging them to introduce and pass the 4th Amendment Protection Act would be a good first step. It's not going to be easy, but sooner or later, we're going to have to stop putting up with it.
Rosa Parks may have put it best:
People always say that I didn't give up my seat because I was tired, but that isn't true. I was not tired physically, or no more tired than I usually was at the end of a working day. I was not old, although some people have an image of me as being old then. I was forty-two. No, the only tired I was, was tired of giving in.
Copyright, Truthout.
Americans' Personal Data Shared With CIA, IRS, Others in Security Probe
Friday, 15 November 2013 12:01 By Marisa Taylor, McClatchy Newspapers | Report
http://www.truth-out.org/news/item/20075-americans-personal-data-shared-with-cia-irs-others-in-security-probe
Washington - U.S. agencies collected and shared the personal information of thousands of Americans in an attempt to root out untrustworthy federal workers that ended up scrutinizing people who had no direct ties to the U.S. government and simply had purchased certain books.
Federal officials gathered the information from the customer records of two men who were under criminal investigation for purportedly teaching people how to pass lie detector tests. The officials then distributed a list of 4,904 people – along with many of their Social Security numbers, addresses and professions – to nearly 30 federal agencies, including the Internal Revenue Service, the CIA, the National Security Agency and the Food and Drug Administration. Although the polygraph-beating techniques are unproven, authorities hoped to find government employees or applicants who might have tried to use them to lie during the tests required for security clearances. Officials with multiple agencies confirmed that they’d checked the names in their databases and planned to retain the list in case any of those named take polygraphs for federal jobs or criminal investigations.
It turned out, however, that many people on the list worked outside the federal government and lived across the country. Among the people whose personal details were collected were nurses, firefighters, police officers and private attorneys, McClatchy learned. Also included: a psychologist, a cancer researcher and employees of Rite Aid, Paramount Pictures, the American Red Cross and Georgetown University.
Moreover, many of them had only bought books or DVDs from one of the men being investigated and didn’t receive the one-on-one training that investigators had suspected. In one case, a Washington lawyer was listed even though he’d never contacted the instructors. Dozens of others had wanted to pass a polygraph not for a job, but for a personal reason: The test was demanded by spouses who suspected infidelity.
The unprecedented creation of such a list and decision to disseminate it widely demonstrate the ease with which the federal government can collect and share Americans’ personal information, even when there’s no clear reason for doing so.
The Orwellian state is well in place. We now have a virtual standing civilian army masquerading as law enforcement. For some reason, the majority of Americans don't feel threatened by this. I just don't get it.
It's been in place since Ford pardoned Nixon.
Corporations have been mining your data for some time now.
With their help, Limbaugh coined your name, Billary.
I'm surprised you didn't get that.
Nixon could only dream of the tools available today. To think he was brought down trying to place bugs in rotary landlines! Nonetheless, not only have we totally lost any semblance of privacy, the state has the ability to use force for anything they please. I cannot understand why you shrug that off while worrying about who coined my screen name. I honestly was not aware it was Rush, but then again I don't exactly follow his rantings.
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