Fourth Amendment

Obstacles Loom for States' Proposed "Fourth Amendment Protection" Laws

By Michael Knapp
Wednesday, January 7, 2015, 9:30 AM

Legislators in several states have proposed bills over the past year intended to hamper the NSA’s efforts to collect signals intelligence.  In Utah, the site of a large NSA data center, a proposed bill would prevent the state, its cities, and its agencies from providing “material support or assistance in any form to any federal data collection and surveillance agency.”  The bill is plainly targeted at crippling the data center, which currently relies on a contract with a nearby city for its water supply.  The bill would allow the continued performance of the ongoing contract, for which the city borrowed substantial funds, but would prohibit the renewal of the contract or any new contracts with the NSA data center.  Furthermore, the bill also imposes a penalty on private corporations that provide support to surveillance agencies by precluding such corporations from subsequently contracting with the state or its agencies.

In Missouri, a recently proposed bill would prohibit state agencies and cities from cooperating with federal agencies in the warrantless collection of electronic data.  (In November, Missouri citizens amended their constitution to include “electronic communications and data” within the protection against unreasonable searches and seizures.) This bill is less sweeping than the Utah bill, because it targets only support of warrantless collection, not “any federal data collection or surveillance agency.”  There are no known NSA facilities in Missouri, but the bill follows a trend in other states that seek to limit cooperation with the NSA: similar statutes have been proposed in other states, including Arizona, California, Oklahoma, and Washington.

These bills would probably not survive a challenge by the federal government.  Federal law preempts state law when the state law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.”  Courts make this judgment by determining Congress’s objective in enacting the federal legislation and by considering the nature of the state law.  If the state law impedes the federal objective, the state law is likely preempted.  The Supreme Court has been especially likely to find a state law preempted when, as here, it infringes on the federal government’s foreign affairs or national security authority, and it has sometimes done so even when there is no specific federal statute at play.

The secretive NSA site in Utah might exist to pursue any of a number of objectives authorized by Congress or the President.  FISA, for example, authorizes the NSA to collect signals intelligence to promote national security.  The proposed state bills might impede the achievement of that objective by preventing federal agencies from obtaining basic services such as water and electricity needed to perform their functions.  The Utah bill is particularly explicit in its purpose: “to refuse material support or assistance to any federal data collection and surveillance agency.”  Because the bill’s stated objective is to frustrate the operations of a federal agency, it probably creates an obstacle to vindication of whatever federal statutory (or constitutional) objective the NSA data center promotes.  Further, because the bill impacts national security policy, it might be invalidated on a theory of dormant preemption.

Rather than banning participation with the NSA, states and cities might simply refuse to renew the water contract or provide other services to the NSA facility for economic or political reasons.  If they did, Congress might face some obstacles of its own in compelling provision of such services.  Congress could conceivably obtain needed services by exercising eminent domain over water or other contractual rights or by attaching restrictions to related funding.  It might also pass legislation mandating that states offer support to intelligence agencies.  The anticommandeering principle laid out in Printz would normally preclude the federal government from compelling the states to act on behalf of the federal government.  One commentator has suggested, however, that the Constitution’s Protection Clause might provide an exception to the anticommandeering doctrine in the context of national security.

These bills might not get very far—similar bills in Maryland and Tennessee died in committee last year.