Alaska legislation takes aim at warrantless spying by NSA, other federal agencies

A bipartisan group of legislators have introduced bills in the Alaska state house and senate which take on the status quo of information sharing and mutual assistance between the state of Alaska and the National Security Agency (NSA), as well as other federal agencies engaging in warrantless surveillance. 

House Bill 283 (HB283), introduced by Rep. Scott Kawasaki (D-4th District), and Senate Bill 142 (SB142), introduced by Sen. Bill Wielechowski (D-District G), both seek to ban the state and local governments from assisting, cooperating with or participating “with a federal agency in the collection of electronic data” under any federal acts which authorize that collection “without a search warrant that particularly describes the person, place, and thing to be searched or seized.”

The bills would also prohibit the same regarding telephone records, and make any such information inadmissable in state court proceedings. 

Wielechowski noted the urgency of a state-response to federal surveillance in a recent tweet:

Wielechowski's legislation appears to have strong bipartisan support, with co-sponsorship from two democrats and two republicans, including the powerful majority leader, Sen. John Coghill (R-District A).

Based on the long-standing legal principle known as the anti-commandeering doctrine, the bills do not call for a physical interposition against federal agencies engaged in warrantless surveillance, but instead call for a complete stand-down in areas where the state participates in the surveillance.

The doctrine is most famous for the 1997 Printz case, where the Supreme Court held that the federal government could not require a state to carry out the Brady Act on its behalf. Other cases have held the same, spanning from 1842 to 2012.

Georgetown law professor Randy Barnett confirmed the same to National Journal recently. “State governments are free to refrain from cooperating with federal authorities if they so choose. In general, states cannot attack federal operations, but that’s not the same as refusing to help,” he said.

OffNow coalition representative Shane Trejo noted that this could be an effective method to make NSA spying more difficult. We know that NSA is passing warrantless information along to local law enforcement through the DEA’s special operations division (SOD), and this Alaska legislation would ban the state from participating in that practice,” he said. “And on top of it, the FBI has been engaging in mass data sweeps in partnership local law enforcement too. The Alaska legislation is strong because it’s not limited to a particular federal agency. It rejects warrantless surveillance no matter what federal agency happens to be doing it.”

As Reuters reported in August, 2013, the secretive Special Operations Division (SOD) is “funneling information from intelligence intercepts, wiretaps, informants and a massive database of telephone records to authorities across the nation to help them launch criminal investigations of Americans.” Documents obtained by Reuters show that these cases “rarely involve national security issues,” and that local law enforcement is directed by SOD to “conceal how such investigations truly begin.”

Reports in the Washington Post and USA Today last fall documented how “the FBI and most other investigative bodies in the federal government” are regularly using a mobile device known as a “stingray” to intercept and collect electronic data without a warrant. Local and state police “have access through sharing agreements.”

The legislation would ban the state from using such information in court proceedings, rendering it almost useless in practice, according to Trejo. He also noted that the legislation bans any assistance to or cooperation with the collection of that data without warrant. “It certainly will be interesting to see how an Alaska court determines the extent of cooperation, but there are many ways that state and federal agencies are working hand-in-hand in building this mass surveillance state. This legislation is a big step towards putting that to an end in Alaska.”

Both bills have been referred to the respective chamber’s Committee on Community and Regional Affairs, where a majority vote will be needed before sending the legislation to the next committee, Judiciary. From there, the bill can pass on to the house and senate floor for consideration and vote.