California lawmakers have voted to ban state agencies from providing certain material support to the federal government in a move many say is intended to curb tech companies from cooperating with the National Security Agency.
Though the “Fourth Amendment Protection Act” doesn’t specifically name the NSA or any other federal agencies, lawmakers say the largely symbolic bill is aimed at the surveillance collective that has come under fire for so-called “warrantless wiretapping” and bulk collection programs that gather vast amounts of Internet and telephone metadata belonging to Americans.
The bill, which passed the California Senate earlier this week with a 29-1 vote, bans California agencies from “providing material support, participation, or assistance to any federal agency attempting the illegal and unconstitutional collection of electronic data or metadata, without consent, of any person” without a clear, specific warrant or a similar court order.
The bill comes nearly a year after a series of leaks unveiled a clandestine surveillance program operated by the NSA in which billions of records belonging to American telephone customers were being gathered and searched in terrorism cases.
“All 317 million Americans cannot reasonably be considered to be suspicious simply for making or receiving telephone calls,” Democratic Sen. Ted W. Lieu said in a statement. “The NSA’s blanket seizure of the telephone records of all Americans is therefore an ‘unreasonable seizure’ by any definition of the term under the Fourth Amendment.”
According to a California senate statement, state agencies are sometimes called upon by agencies such as the NSA to collect electronic metadata. The bill is designed to “prevent taxpayers’ money from going towards violating their own rights,” the statement said. Similar legislation is currently being considered in more than a half-dozen other states, including Arizona, Kansas and Washington.
“The real [importance] of these kinds of bills is to send a strong signal that states are not only uncomfortable with the NSA’s spying, but they also reject the legal rationale behind much of its warrantless surveillance,” Electronic Frontier Foundation attorney Hanni Fakhoury told Ars Technica. “The [bills] makes clear that obtaining any of these sorts of records or data without a warrant is illegal.”
Nothing in the bills prevent the private industry, including tech companies, from cooperating with federal agencies. It was revealed last year that several California-based tech giants, including Apple, Google and Facebook, had provided customer information to the NSA under various programs.
One such program, called PRISM, claimed to grant NSA agents “direct access” to e-mail and other Internet communication of at least nine tech giants. Those tech companies have since denied any knowledge of PRISM, claiming they never granted federal authorities direct access into their servers and only provide customer information pursuant to a warrant.
Any law enacted at the state level to curb such private cooperation would be superseded by federal law, which generally takes precedent. To that, a federal agency such as the NSA could force the hand of the state if it wanted to, or surreptitiously take whatever information it wanted to through illicit means. That isn’t lost on lawmakers that passed California’s anti-NSA bill earlier this week.
“I support much of what the NSA does and they do protect America,” Lieu said. “My problem is specific programs, like bulk collection. I am a strong believer in national security until it violates the Constitution.”
Matthew Keys is a contributing journalist for TheBlot Magazine.