It’s vaguely reminiscent the classic showdown between a landlord and a tenant habitually in arrears on his rent. Except in this case, the denial of essential services, like water, would be perfectly legal.
A bill introduced in the Utah State legislature by Rep. Marc Roberts would deny critical state supplied resources, like water, to the National Security Agency data center in Bluffdale. Legislators in six other states are considering similar legislation.
Each of these bills would ban “material support or resources” from the state to warrantless federal spy programs.
The Utah Fourth Amendment Protection Act (HB150) would require that Bluffdale turn off city supplied water to the NSA’s data center upon paying off the city’s $3 million bond. In states without physical NSA facilities, passage of similar legislation would not only support Utah’s efforts, but would have practical effect as well.
A group called OffNow developed model legislation for the Fourth Amendment Protection Act in the summer of 2013. OffNow executive director Mike Maharrey said the strategy of taking action at the state level to address NSA spying evolved as it became clear D.C. was not going to offer any real oversight or reform. Said Maharrey:
Sen. Frank Church warned us about the NSA 40 years ago, saying it had the potential for ‘total tyranny,’ and Congress still hasn’t done a damn thing. In fact, it has given the agency more power and made it more intrusive.“It’s exciting to see state legislators stepping up to say, ‘If you won’t do anything to stop unconstitutional spying, we will! We will not assist the feds in violating our rights.’
Roberts introduced the Fourth Amendment Protection Act in Utah last year, and it was referred to an interim study committee in order to carry the issue over to the 2015 session. In November, the committee held a public hearing that revealed the legislation has significant momentum and support. Roberts tightened up some language based on discussions over the summer, setting up the bill to move through the legislative process this year.
During the interim committee hearing in Utah, one state rep, intentionally or not, made a plea to other states to help out. “If Utah goes through all this trouble to turn off the water, what’s to stop the NSA from moving to another state?” he asked.
“What will stop the NSA from moving? Bills like those being considered in these other five states,” Maharrey said. “If enough states step up and pass the Fourth Amendment Protection act, we can literally box them in force reform – or else shut them down.”
To date, legislators in Alaska, Missouri, South Carolina, Washington state. Mississippi and Indiana have introduced similar legislation. Maharrey said he has commitments from lawmakers in six other states to do the same.
The Fourth Amendment Protection Act would also have practical effects in any state that passes it.
The legislation would prohibit what NSA former Chief Technical Director William Binney called the country’s “greatest threat since the Civil War,” by banning the state from obtaining or making use of shared electronic data or metadata collected by the NSA without a warrant. Reuters revealed the extent of NSA data sharing with state and local law enforcement in an August 2013 article. The bill would also set the stage to end partnerships between the NSA and state universities.
The legislation rests on a well-established legal principle. Under the anti-commandeering doctrine, the Supreme Court has long held that the federal government cannot require or force a state to provide resources for or assist in the implementation of any federal act or program.
“Simply put, if the federal government wants to continue to try to spy on Americans and violate our most basic right to privacy, it can do it itself – if it can,” Maharrey said.