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Tuesday, March 25, 2014

BREAKING: Can new Michigan legislation nullify all NSA activities in the state?

By: Michael Lotfi Mar 25, 2014
LANSING, March 25, 2014 – A bipartisan group of Michigan legislators have introduced a bill, which would ban the state from providing material support to the National Security Agency (NSA). The introduced legislation would also block some immediate practical effects of federal warrantless surveillance programs from within the state.

House Bill 5420 (HB5420), the Fourth Amendment Protection Act, was introduced by Rep. Tom McMillin (R-Rochester) last Thursday to prohibit any state support of the NSA. Cosponsors include five Republicans and five Democrats.

“There is a clear assault by federal government agencies like the NSA on Michigan citizens’ fourth amendment rights,” Rep. McMillin said. “We should do everything we can to stop that assault.”

Michigan joins a host of states including Arizona, California, Tennessee and South Carolina which are considering similar legislation to push back against NSA spying this year.

Practically speaking, HB5420 addresses three areas where the NSA relies on state assistance to continue their programs.

The legislation prohibits the state of Michigan and its subdivisions from providing “material support, participation, or assistance in any form that aids in collecting electronic data or metadata concerning any person, if the collection is not pursuant to a warrant that particularly describes the place to be searched and the person or thing to be seized.”

Currently, five schools in the state of Michigan have been labeled by the NSA as a “center for academic excellence.” These university partnerships provide critical research that helps the NSA to expand. Continuance of such programs would be banned should HB5420 become law.

Finally, the legislation would ban the state, including local law enforcement, from using in a criminal investigation or prosecution any electronic communications obtained without a warrant “that particularly describes the place to be searched and the person or thing to be seized.”

While the NSA does not currently operate a data or “threat operations” center in Michigan, Tenth Amendment Center communications director Mike Maharrey said states around the country need to pass similar legislation to make NSA expansion more difficult.

“We know the NSA has aggressively worked to expand its physical locations because it maxed out the Baltimore area power grid in 2006. They’ve built new locations in Utah and Texas, and expanded in several other states,” Maharrey said. “Since the NSA is expanding so wildly, it’s not unlikely that they’re planning to build new data centers and ‘threat operations centers’ in other locations. We can’t wait until the NSA opens up shop. Passage of the Fourth Amendment Protection Act puts the NSA in a pretty tight box, one that we don’t plan to let it out of.”

HB5420 includes criminal charges for state officials that decide to collude with the NSA and aid their spying program. Any state agent or employee who violates the act would commit a “misdemeanor punishable by imprisonment for not more than 90 days.”

The legislation is based off the long-standing legal principle of the anti-commandeering doctrine, which prohibits the federal government from requiring, or “commandeering” the states to carry out their acts. The Supreme Court has upheld the doctrine in four major cases going back to 1842.

In the Prigg case of 1842, the Supreme Court held that the federal government was not allowed to require the states to help carry out federal slavery laws. The same verdict was reached more recently in Printz v. United States when the Court ruled that states could not be forced to implement federal gun control measures.

HB5420 will first be voted on in the House Judiciary Committee, where it will need to pass before being considered by the full state house.