STE WILLIAMS

It’s not easy for the NSA to keep violating the Fourth Amendment to the US Constitution – which bans warrantless searches – say two groups, the Tenth Amendment Center and the Bill of Rights Defence Committee.

For one thing, it takes a lot of water.

Massive data-mining facilities hold the data the NSA pulls in, including the new $1.5 billion data center in Utah, which the groups say uses 1.7 million gallons a day to cool off super-hot servers that hold a mind-boggling amount of data (when they aren’t popping fuses).

Cut off the water, and you cut off the NSA, the thinking goes.

As it is, the need for electricity and water is the spy agency’s Achilles Heel, the groups point out on a site devoted to putting an arrow through that heel.

To get at that heel, states could cut off not only water but also access to public utilities and services, they suggest, including sanitation, road repair, electricity, and any other resources the NSA needs to keep the show on the road.

The groups suggest that states keep anybody from making a buck off the deal by inflicting “severe penalties” on businesses that might step up to sell the NSA the resources it so badly needs.

The grassroots campaign has come up with model legislation (PDF) – the “4th Amendment Protection Act” – for states to resist what it calls the “unconstitutional NSA programs [our link] that violate the 4th Amendment billions of times each week”.

The legal rationale behind cutting off the NSA’s supply chain is called “anti-commandeering”, the groups say, and has been used in the past to resist the federal government in matters including returning runaway slaves.

From the site:

[Anti-commandeering is] the principle that the federal government doesn’t have the authority to force the states (or local communities) to carry out federal laws, regulatory programs, and the like. The Supreme Court affirmed this three times in recent years, the cases being: 1997 Printz, 2002 New York, 2012 Sebelius. It also affirmed this doctrine in the 1842 Prigg case where states refused to assist the federal government in capturing and returning runaway slaves. This is also consistent with what James Madison advised when writing about the Constitution in Federalist #46. Among the four steps he advised as “powerful means” to oppose federal power was “a refusal to cooperate with officers of the Union.”

The “Turn It Off” campaign hopes that states that adopt versions of its proposed law would, at minimum, force the NSA to reconsider its collection tactics, if not evict the agency and force it to find a new home(s).

The bill has been introduced in ten states and has spawned related actions, including a campaign to cut off the NSA’s juice in Washington State that’s received over 18,000 signatures.

Here are updates on versions of the legislation now wending their way through the legislative process (or getting stopped and frisked by law enforcement, as the case may be) in the states of Indiana, Kansas, New Hampshire and Washington.

If not literally frisked, the proposed legislation is going to bump up against law enforcement agencies that don’t want to stop doing warrantless surveillance.

That was made clear by Brett Hildabrand, the Representative who introduced Kansas’s version of the “Turn It Off” legislation.

On Tuesday, Hildabrand tweeted that in a hearing over his bill, local law enforcement admitted that the bill’s disallowing of warrantless surveillance would throw a monkey wrench into their own operations.

That’s because, as the sheriff’s department admitted, they now scan license plates and store data “of law-abiding citizens,” Hildabrand wrote – something that HB 2124 would outlaw in its current form.

The Kansas sheriff’s department is far from alone when it comes to local law enforcement’s increasing use of not only license plate readers but a medley of other surveillance gizmos: gunshot-detection sensors, data-mining of social media posts for criminal activity, tracking of toll payments when drivers use electronic passes, and even at least one drone (in Texas; police in California’s Alameda County wanted one too, but public protest forced them to give up that particular toy purchase).

I reached out to Hildabrand to get his take on whether this legislation has a snowball’s chance in hell of getting passed in any state, given not only resistance from local law enforcement but also the money and high-paying jobs that come out of the NSA’s data centers.

I’ll update the story if he gets back to me.

In the meantime, please feel free to share your take on snowballs and having the cojones to stand up to the federal government in this manner in the comments section below.

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Image of water tap courtesy of Shutterstock.

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