Michigan has just passed a landmark law that prohibits passing residents’ personal information over to federal authorities without a warrant. The legislation has been interpreted as a protest against the National Security Agency and has effectively tried to ban NSA privacy invasions.
The FISA (Foreign Intelligence Surveillance Act) system has received plenty of attention recently for the part it played in the FBI’s Trump investigation and it seems even presidential candidates aren’t safe from ever watching eyes. While the FISA program is ostensibly aimed only at foreigners, the 2013 Snowden exposé revealed large scale surveillance of American citizens, a practice which privacy advocates suspect continues and which they claim violates the constitutional right to privacy.
Michigan state representative Martin Howrylak (R) evidently thinks so, having introduced the Fourth Amendment Rights Protection Act that has just been ratified as law in the Great Lakes State. The bill received wide bipartisan approval, passing unanimously through the Senate and with a majority of 108-1 in the House.
Fourth Amendment Rights Protection
The legislation declares:
“This state or a political subdivision of this state shall not assist, participate with, or provide 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 or metadata.”
As of June, Michigan may only provide personal data to federal agencies if they can present a warrant based upon probable cause, unless there is a legally recognized exception, if the target has given informed consent, and if it does not infringe on any reasonable expectation of privacy the person may have.
Howrylak said in a statement that, “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.” He continued:
“This new law guarantees no state resources will be used to help the federal government execute mass warrantless surveillance programs that violate the Fourth Amendment protections enshrined in the U.S. Constitution…Michigan will not assist the federal government with any data collection unless it is consistent with the constitution.”
According to Howrylak’s office, Michigan has taken a stand against encroaching federal surveillance in response to a move made by Congress in January to “extend the federal government’s warrantless surveillance program.”
This refers to the renewal of Section 702 of the FISA Act, which authorizes agencies such as the NSA and FBI to target any foreigner located outside U.S. borders for surveillance. While no legal permission is given to target U.S. citizens, the catch is that Americans’ information may be incidentally captured within the dragnet of intelligence sweeps – that is, Americans in communication with any foreigner could have that communication collected. Data can be swept up in “upstream” data dredging, collected by tapping internet communication cables.
Section 702 is also used as justification for the NSA’s PRISM program (aka “downstream” surveillance) which harvests and stores information from tech companies. PRISM came to light in 2013 when whistleblower Edward Snowden revealed NSA documentation demanding that telecom providers including Verizon hand over millions of U.S. customer phone records on an “ongoing daily basis.” For more detail, an excellent rundown of the NSA’s domestic surveillance is provided by the National Review.
Although agencies are supposed to sift through and discard purely domestic data, privacy advocates are skeptical. The Electronic Frontier Foundation, a nonprofit dealing with civil liberties in the digital realm has stated:
The fact that Section 702 surveillance regularly results in the collection and search of innocent Americans’ communications is an intended and inherent part of the system.
NSA vs. The States
Michigan isn’t the only state waging war against federal surveillance, although it is the first one to act successfully. In 2014, Utah considered cutting off water to the Utah Data Center, a major NSA computing and storage facility near the city of Bluffdale. Shortly after the Snowden leaks, state Representative Marc K. Roberts (R) introduced the Prohibition on Electronic Data Collection bill, which would have barred the state from providing information or utilities, including water, to the the facility, which is estimated to use 1.7 million gallons per day as coolant to keep its computers collecting and storing data. Roberts told The Guardian that his bill was a message to the federal government that, “if you want to spy on the whole world and American citizens, great, but we’re not going to help you.”
After the NSA’s processing demands “maxed out” Baltimore’s power grid in 2006, it became clear that resources were an “Achilles’ heel” for the agency, according to anti-surveillance group OffNow. The Utah bill failed to get off the ground, but lawmakers in other states tried their own luck. Maryland (home of NSA headquarters) proposed to cut off its own NSA facilities, with similar proposals in California, Maine, Arizona, Oklahoma, Indiana, Mississippi, Washington state, Vermont, Kansas, New Hampshire, Alaska, Texas, and Missouri.
But no state has successfully blocked the federal government’s warrantless surveillance until now. Unlike Utah or Maryland, Michigan doesn’t have an NSA facility within its borders although the bill will likely prevent the agency from moving in.
Will the law make a difference? Perhaps Michigan’s small effort will not truly disrupt the federal government’s surveillance capabilities, but a precedent has been set and it sends a message that states are resisting the unblinking eye of Big Brother.