Wednesday, January 27

Status Report: Nullifying the National Surveillance State

by Mike Maharrey

In 2014, the Tenth Amendment Center dove headfirst in the fight against unconstitutional federal surveillance when it spearheaded efforts to turn off the water at the NSA facility in Bluffdale, Utah, and cut off other critical state and local services to other NSA facilities.

We haven’t turned off the water in Utah — yet. But we did win some victories. In 2014, California Gov. Jerry Brown signed SB828 into law, laying the foundation for the state to turn off water, electricity and other resources to any federal agency engaged in mass warrantless surveillance. In 2018, Michigan built on this foundation with the passage of HB4430. 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,” without a warrant or under a few other carefully defined exceptions. 

Although NSA spying remains the most high-profile warrantless surveillance program, the federal government has created a national surveillance network that extends well beyond the operation of this single agency. In fact, state and local law enforcement have become vital cogs in the national surveillance state. 

State, local and federal governments work together to conduct surveillance in many ways. As a result, efforts to protect privacy at the state and local level have a significant spillover effect to the national level.

While continuing efforts to cut off resources to NSA facilities in recent years, we also focused on other state-federal surveillance partnerships that feed into the national spy-state.

ALPR/License Plate Tracking

As reported in the Wall Street Journal, the federal government, via the Drug Enforcement Agency (DEA), tracks the location of millions of vehicles through data provided by Automatic Licence Plate Readers (ALPRs) operated on a state and local level. They’ve engaged in this for nearly 10 years, all without a warrant, or even public notice of the policy.

Currently, six states have placed significant restrictions on the use of ALPRs. Activists are expected to push several states to consider similar restrictions in the next legislative session.

Facial Recognition and Biometric Surveillance

Facial recognition is the newest frontier in the national surveillance state. Over the last few years, the federal government has spearheaded a drive to expand the use of this invasive technology. At the same time, some state and local governments have aggressively pushed back.

In a nutshell, without state and local cooperation, the feds have a much more difficult time gathering information. Passage of laws banning or restricting the use of facial recognition eliminates one avenue for gathering biometric data. Simply put, data that doesn’t exist cannot be entered into federal databases.

In 2019, California enacted a law that prohibits a law enforcement agency or law enforcement official from installing, activating, or using any biometric surveillance system in connection with an officer camera or data collected by an officer camera. This includes body-worn and handheld devices. This new law had a significant impact. After its enactment, San Diego shut down one of the largest facial recognition programs in the country in order to comply with the law.

Washington state passed a bill that would require a warrant for ongoing and realtime facial recognition surveillance. The bill doesn’t completely ban the use of facial recognition and there is some concern about how police will interpret the statute, but it takes a good first step toward addressing the issue.

New York passed a bill that would place a moratorium on the use of facial recognition in schools. At the time of this report, it is awaiting Gov. Cuomo’s signature.

There have also been a large number of local facial recognition bans implemented in the last year, particularly in California and Massachusetts.

Stingrays and Electronic Data Collection

Cell site simulators, more commonly called “stingrays,” are portable devices used for cell phone surveillance and location tracking. They essentially spoof cell phone towers, tricking any device within range into connecting to the stingray instead of the cell tower, allowing law enforcement to sweep up all communications content within range of that tower. The stingray will also locate and track any person in possession of a phone or other electronic device that tries to connect to the tower.

In 2019, New Mexico barred warrantless stingray spying in its Electronic Communications Privacy Act. The law requires police to obtain a warrant or wiretap order before deploying a stingray device, unless they have the explicit permission of the owner or authorized possessor of the device, or if the device is lost or stolen.

In the 2020 session, New Mexico expanded protections under that 2019 law by limiting the retention and use of incidentally-collected data.

Also in 2020, the Maryland legislature passed a bill to ban warrantless stingray spying by adding provisions to existing statutes limiting warrantless location tracking through electronic devices. The bill addresses the use of cell-site simulators, requiring police to get a court order based on probable cause before deploying a stingray device. The bill also bars police from using a stingray to obtain communication content and spells out explicit criteria law enforcement must meet in order to justify such an order.

Two other states also expanded their restrictions on warrantless government access to electronic data last year.

Utah passed a bill expanding its electronic data protection by barring law enforcement agencies from accessing electronic information or data transmitted to a “remote computing service” without a warrant based on probable cause in most situations. In effect, it prohibits police from accessing information uploaded into the “cloud” without a warrant. The state previously prohibited both the use of stingrays and accessing data on a device without a warrant. 

Illinois also expanded its protection of electronic data in 2019. Under the old law, police were required to get a court order based on probable cause before obtaining a person’s current or future location information using a stingray or other means. The new law removes the words “current or future” from the statute. In effect, the law now includes historical location information under the court order requirement. 

This is an overview of the most recent moves to limit surveillance and chip away at the ever-growing national surveillance state. To get more details on state efforts to undermine government spying, along with other unconstitutional federal actions and programs, make sure you read our latest State of the Nullification Movement report. You can download it for free HERE.

Posted with permission from the Tenth Amendment Center.

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