Two States, and Counting, Seeking to Ban Data-Sharing with NSA

As federal judges and lawyers squabble over the constitutionality of NSA data gathering, state legislators in Kansas and Missouri have taken steps to thwart its practical effect and protect the privacy of citizens in their states. 

Late last week, Rep. Brett Hildabrand (R-Shawnee) prefiled a bill that would ban all state agencies and local governments in the state from possessing data “held by a third-party in a system of record” and would prohibit any such information from being “subject to discovery, subpoena or other means of legal compulsion for its release to any person or entity or be admissible in evidence in any judicial or administrative proceeding” without either “express informed consent” or a warrant.

The Fourth Amendment Protection Act (HB2421) would effectively prohibit the use of information gathered by the NSA and shared with state or local agencies in Kansas.

“I want to make sure that electronic privacy in Kansas is protected in the same way that physical letters in the mail are protected from random government searches,” Hildabrand said. “Each day, we hear a new revelation about how the NSA is violating our personal privacy. My bill will ensure the state of Kansas doesn’t utilize this illegally obtained data.”

Hildabrand said it will also address potential privacy violations at the state level.

“USA Today reported early in December that over 100 police agencies in 33 states now use technology to intercept and catalog the electronic communication of average, law-abiding citizens. We must be ever-vigilant that their rights are not being infringed upon by big government taking advantage of advances in technology.”

A proposed amendment to the Missouri state constitution would accomplish the same thing by adding “electronic communications and data” to the search and seizure clause of the state constitution. If SJR 27 passes the legislature, the proposed amendment would be placed on the next ballot.

A Reuters report in August, 2013, revealed that the NSA ‘s 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 the SOD directs local law enforcement to “conceal how such investigations truly begin.”

Tenth Amendment Center national communications director Mike Maharrey said he has no faith in Congress or the courts reining in the NSA.

“The bottom line is the federal government doesn’t limit itself,” he said. “Realistically, the federal courts have a strong track record of deferring to federal agencies when they claim ‘national security issues,’ so we can’t count on them to uphold the intent of the Fourth Amendment. That’s why it’s crucial for state governments to step into the gap and protect the most basic rights of their citizens.  Rep. Hildabrand’s bill and the proposed Missouri constitutional amendment do just that.”

The efforts in Kansas and Missouri tie into a national movement spearheaded by the OffNow coalition to stop unconstitutional NSA spying through state and local action. Last month, Arizona state Sen. Kelli Ward announced she was introducing an even broader bill to deny material support to the NSA in the Grand Canyon State. Sources close to the Tenth Amendment Center indicate several other state lawmakers plan to introduce similar legislation in the coming weeks.

“There are four strategic points where states can take action to thwart the effect of NSA spying: provision of resources, university partnerships, corporate sanctions, and information-sharing.  Each bill introduced is an important piece of the puzzle,” OffNow.org national campaign lead Shane Trejo said.