by Michael Maharrey, Activist Post:
A new law banning “material support or resources” for warrantless federal surveillance programs went into effect in Michigan. This is an essential step every state needs to take at a time when the federal government seems unlikely to ever end unconstitutional spying on its own.
Rep. Martin Howrylak (R-Troy) introduced House Bill 4430 (HB4430) last spring. The new law prohibits the state and its political subdivisions from assisting, participating with, or providing “material support or resources, to a federal agency to enable it to collect, or to facilitate in the collection or use of a person’s electronic data” unless one of five conditions apply:
(a) The person has given informed consent.
(b) The action is pursuant to a warrant that is based upon probable cause and particularly describes the person, place, or thing to be searched or seized.
(c) The action is in accordance with a legally recognized exception to warrant requirements.
(d) The action will not infringe on any reasonable expectation of privacy the person may have.
(e) This state or a political subdivision of this state collected the electronic data or metadata legally.
“This reform safeguards the fundamental rights of all Michigan residents, who are guaranteed protection of their property and privacy rights by the Fourth Amendment of the U.S. Constitution,” Howrylak said. “Michigan will not assist the federal government with any data collection unless it is consistent with the Constitution.”
Michigan is the second state to take action to prohibit support for warrantless federal surveillance. In 2014, California took a smaller first step when Gov. Jerry Brown signed a bill banning the state from participating in, or providing material support or resources to any federal agency engaged in the “illegal and unconstitutional collection of electronic data or metadata.” The California law needs additional steps for effectuation by defining specifically what actions constitute “illegal and unconstitutional.” Passage of HB4430 in Michigan goes further by prohibiting specific state actions and gives the movement to stop unconstitutional federal surveillance more momentum
Despite concerns about warrantless surveillance in the wake of Edward Snowden’s revelations, Congress has done nothing to rein in NSA spying. In January, Congress reauthorized the FISA Sec. 702.
As Andrew Napolitano explained, “the FISA-created process permits a secret court in Washington to issue general warrants based on the government’s need to gather intelligence about national security from foreigners among us. It pretends that the standard is probable cause of foreign agency, but this has now morphed into the issuance of general warrants whenever the government wants them.” A typical FISA warrant authorizes government surveillance on all landlines, mobile devices and desktop computers in a given area. While the process was created to monitor foreign agents, it sweeps up reams of data belonging to Americans.
Before approving a six-year extension of Section 702, the House voted to kill an amendment that would have overhauled the surveillance program and addressed some privacy concerns. Provisions in the amendment would have required agents to get warrants in most cases before hunting for and reading Americans’ emails and other messages that get swept up under the program.
Just one day after Trump signed the extension into law, news came out about the infamous FISA memo. This memo was available to members of the House Intelligence Committee prior to the vote to reauthorize FISA. None of this information was made available to Congress at large. Most telling, every single Republican member of the House Intelligence Committee voted to reauthorize Sec. 702, and in a heartwarming show of bipartisanship, six of the nine Democratic representatives on the committee joined their colleagues.
This is yet another indication we can’t count on Congress to limit its spy-programs.
The feds share and tap into vast amounts of information gathered at the state and local level through a program known as the “information sharing environment” or ISE. In other words, these partnerships facilitate federal efforts to track the movements of, and obtain and store information on, millions of Americans. This includes monitoring phone calls, emails, web browsing history and text messages, all with no warrant, no probable cause, and without the people even knowing it.
According to its website, the ISE “provides analysts, operators, and investigators with information needed to enhance national security. These analysts, operators, and investigators… have mission needs to collaborate and share information with each other and with private sector partners and our foreign allies.” In other words, ISE serves as a conduit for the sharing of information gathered without a warrant.
Because the federal government relies heavily on partnerships and information sharing with state and local law enforcement agencies, passage of HB4430 potentially hinders warrantless surveillance in the state. For instance, if the feds wanted to engage in mass surveillance on specific groups or political organizations in Michigan, it will now have to proceed without state or local assistance. This will likely prove problematic.
State and local law enforcement agencies regularly provide surveillance data to the federal government through ISE and Fusion Centers. They collect and store information from cell-site simulators (AKA “stingrays”), automated license plate readers (ALPRs), drones, facial recognition systems, and even “smart” or “advanced” power meters in homes.
Passage of HB4430 sets the stage to end this sharing of warrantless information with the federal government. It would also prohibit state and local agencies from actively assisting in warrantless surveillance operations.
By including a prohibition on participation in the illegal collection and use of electronic data and metadata by the state, HB4430 will also prohibit what NSA former Chief Technical Director William Binney called the country’s “greatest threat since the Civil War.”
The bill bans the state from obtaining or making use of electronic data or metadata obtained by the NSA without a warrant.
Reuters revealed the extent of such NSA data sharing with state and local law enforcement in an August 2013 article. According to documents obtained by the news agency, the NSA passes information to police through a formerly secret DEA unit known Special Operations Divisions and the cases “rarely involve national security issues.” Almost all of the information involves regular criminal investigations, not terror-related investigations.
In other words, not only does the NSA collect and store this data. using it to build profiles, the agency encourages state and local law enforcement to violate the Fourth Amendment by making use of this information in their day-to-day investigations.
This is “the most threatening situation to our constitutional republic since the Civil War,” Binney said.