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NSA Data-Collection Targeted by State Legislation

The U.S. National Security Agency claims that the broad surveillance powers it has assumed are necessary to protect Americans against terrorist attacks. But some Tennessee lawmakers are backing legislation to prevent state-run service providers and facilities from in any way aiding in warrantless data-collection by the federal government.

The Tennessee Fourth Amendment Protection Act (HB0679/SB0782) — sponsored by Sen. Mae Beavers, R-Mt. Juliet, and Republican Jonesborough Reps. Micah van Huss and Matthew Hill — would prevent the state or any of its subdivisions from assisting or otherwise providing “material support or resources to enable or facilitate” the gathering of an individual’s data by the NSA without a judge’s approval.

The legislation was conceived by a privacy rights advocacy group called the Off Now Coalition, whose aim is to “shut down the surveillance state.” It is designed to help protect against the NSA’s domestic data-collection program revealed in 2013 by whistleblower Edward Snowden. The Tennessee legislation represents part of a broader national strategy by activists to gain regional leverage against the NSA where political efforts in Washington, D.C. have largely come up short.

y-12 billboards 1940sThe proposed legislation in the Tennessee statehouse doesn’t include a definition for “material support.” However, OffNow.org argues that because “the spy agency needs resources like water and electricity” and “cannot operate its facilities without these essential resources,” state or municipally owned utilities fall into the category. Partnerships between NSA and state higher education institutions would be blocked, as would use of federal warrantless data by state agencies.

The Multiprogram Research Facility is a part of the Oak Ridge National Laboratory, which is run by a collaboration between the University of Tennessee and the Battelle Memorial Institute.

The NSA is using the facility to produce a supercomputer capable of sifting “through enormous quantities of data – for example, all the phone numbers dialed in the United States every day,” according to James Bamford, an investigative journalist who covers national security and intelligence-gathering issues.

If passed, Tennessee’s Fourth Amendment Protection Act would also prevent law enforcement here from using any NSA-collected data in court.

Fourth Amendment Protection Acts have been introduced in 13 states. None have yet won approval.

A more narrowly written Electronic Data Privacy Act has become law in Utah and New Hampshire. The American Civil Liberties Union lauded Utah’s passage of the legislation last year.

A somewhat similarly worded Fourth Amendment Protection Act was also filed in Tennessee last session, sponsored by state Rep. Andy Holt, R-Dresden and former Knoxville Republican state Sen. Stacey Campfield. However, it died in committees.

The aim of the 2014 legislation was to resist the NSA in its attempts to collect private, personal communications between Americans, Holt said. “It is disturbing to me to think that every conversation, whether that is a telephone call, a text message or an email, may potentially…be used against me at some point by the federal government, and I am not comfortable about that,” Holt said during a hearing on the measure last spring.

Even though the legislation failed in 2014, U.S. government spying on Americans appears to be a matter of concern that crosses party lines in the Legislature.

“The NSA’s attempt to collect data on American citizens is just a complete outrage,” Democratic Rep. Mike Stewart, a Nashville attorney and now chairman of the House minority-party caucus, said last year. “There is no reason in this country ever for people to be collecting information that is private without a warrant.”

Alexander, Corker Vote to Expand Federal Surveillance Powers, TN Reps Divided

Tennessee’s U.S. House delegation was split 5-4 in favor of legislation last week — unanimously supported in the Senate — that seeks to expand the federal government’s domestic surveillance powers.

The Intelligence Authorization Act for Fiscal Year 2015 includes a provision giving the director of national intelligence and agency heads two years to develop procedures governing “intelligence collection activities” that lack a warrant or other formal legal authorization. The new rules would apply to the agencies’ collection of “any nonpublic telephone or electronic communication acquired without the consent of a person who is a party to the communication, including communications in electronic storage.”

These procedures, which must be approved by the U.S. attorney general, “shall permit the acquisition, retention, and dissemination of covered communications.”

The legislation limits the retention of information to five years unless the data meets any of a number of exceptions, which include “the communication is reasonably believed to constitute evidence of a crime and is retained by a law enforcement agency” or “all parties to the communication are reasonably believed to be non-United States persons.”

The Senate unanimously approved the measure, amended to include the new section by Sen. Dianne Feinstein, D-Calif., Dec. 9, on a voice vote. The amended legislation was agreed to by the House the next day, on a vote of 335 to 100. Of the “no” votes, 45 were Republicans and 55 were Democrats.

Voting against the measure in the House were Republicans  Scott Desjarlais, John Duncan and Phil Roe, and Democrat Steve Cohen.

Joining Democrat Jim Cooper in voting for the measure were Republicans Diane Black, Marsha Blackburn, Stephen Fincher and Chuck Fleischmann.

None of Tennessee’s U.S. House lawmakers gave explanations for their votes, nor did Republican Sens. Lamar Alexander and Bob Corker.

U.S. Rep. Justin Amash, a Michigan Republican and chairman of the House Liberty Caucus, said the measure is dangerous and open ended.

“It grants the executive branch virtually unlimited access to the communications of every American,” Amash wrote on his official Facebook page last week. He forced a roll call vote in the House — which was avoided in the Senate — after concluding the Act contains “one of the most egregious sections of law I’ve encountered.”

“Sec. 309 provides the first statutory authority for the acquisition, retention, and dissemination of U.S. persons’ private communications obtained without legal process such as a court order or a subpoena,” Amash wrote in a letter he circulated among all members of the House. While the executive branch can currently use “a claim of executive authority” to conduct surveillance, Amash wrote that “Congress never has approved of using executive authority in that way to capture and use Americans’ private telephone records, electronic communications, or cloud data.”

In 2013 the National Security Agency came under fire when Edward Snowden, a former tech specialist contracted to work for the NSA, revealed a massive domestic surveillance program that included the collection of cell phone and internet data from individuals not under criminal investigation.

One source of criticism by constitutional and civil rights advocates was the federal government’s sharing of that data with local law enforcement agencies, sans warrant. The NSA and federal government officials have maintained these powers are necessary to keep Americans safe from future terrorist attacks.