Seb. Kelli Ward, R-Lake Havasu, drops the 4th Amendment Protection Act in the hopper at the Senate. Ward is the sponsor of the 4th Amendment Protection Act. (Photo Courtesy of Senator Kelli Ward)Although heated political arguments over the mass surveillance tactics of the National Security Agency have often seemed far away in Washington, recent actions by the Arizona Legislature and ASU student groups have brought the debate into the local spotlight.
The NSA has been proven in the last year, by leaked documents and whistleblowers, to use methods of data collection that many have deemed to be too intrusive. The agency can monitor activities such as phone calls and computer usage, causing some to say the actions are a violation of Americans’ Fourth Amendment right to be free of unreasonable search and seizure.
Among these protesters is Sen. Kelli Ward, R-Lake Havasu City, who sponsored Senate Bill 1156, or the Fourth Amendment Protection Act, that passed through the state Senate’s government and Environment committee earlier this month. The bill, if passed, will prohibit the use of state resources in helping the NSA collect data and would prevent data collected without a warrant from being used by state law enforcement in Arizona courts or otherwise, Ward said.
She said she’s not opposed to the NSA’s objective of protecting American citizens, though the agency’s methods have gone too far.
“We’re always led to believe that the reason the government must do this is to prevent the country from terrorism,” Ward said. “But they're clearly collecting information that is not related national security or to potential terrorist attacks, and they're using that information to be used in criminal investigations, and that’s clearly not allowed by the Constitution. I’m not opposed to them getting information, I just want them to get it the correct way rather than throwing out a wide net and seeing what comes back.”
The bill has drawn legal controversy because of its potential violation of the Supremacy Clause, a part of the Constitution that declares federal statutes to be the highest law of the land, and deems any state law contradicting them unconstitutional. Because the NSA is a federal agency and Ward’s Fourth Amendment Protection Act is a state measure, this bill could fall under this category.
Paul Bender, who teaches law at ASU, said it does.
“The bill is unconstitutional,” he said. “The state cannot say that it will refuse to do what federal officials tell them to do. The only time they can do that is if the federal government is being unconstitutional.”
Because of the national government’s responsibility to protect its citizens, the NSA often acts constitutionally in its collection of data, Bender said.
He said even if the agency was unconstitutional in some of its actions, the Fourth Amendment Protection Act does not limit itself to those specific scenarios, so it is too broad to be considered constitutional.
“My prediction is it will not pass both houses,” Bender said. “My prediction of it becoming law is very slim and if it does, it will be very unconstitutional.”
Bender went on to say bills like the Fourth Amendment Protection Act can actually be dangerous to Arizonans, because they lead many to believe that the state government is supreme.
Ward responded to such critiques by saying the NSA’s mass collection of data is very often unconstitutional and thus the state has the right, and the responsibility, to curb its power.
“I think just like Benjamin Franklin that when we’re willing to sacrifice freedom for national security, we will lose both,” she said. “That’s why the founders wrote the Constitution the way they did, to preserve our liberties while maintaining security. (And) the Supreme Court specifically upheld that the federal government cannot force the states to implement federal programs at all, whether they're constitutional or not.”
She said several other states are working to create similar legislation. Utah is in the middle of a fundraising campaign to prohibit the NSA data center there from using state water.
She said she has been surprised by the variety of demographics supporting the Fourth Amendment Protection Act.
“I’ve been very surprised at the breadth of the support, because Republicans and Democrats, Libertarians and Independents all support the right to privacy,” Ward said. “I’ve really been excited to see younger, college-age students, people in their 20s and 30s, and I think this is one of the issues that has woken them up politically … (but I also) had a couple of elderly ladies who came up and hugged me and said, ‘Thank you so much for protecting our freedom; thank you so much for protecting our Constitution.’ It not only crosses the political spectrum, but it crosses the age spectrum as well.”
Despite this support, Ward also said she was surprised at the groups who have shown opposition to her bill.
“I was surprised when we had hearings that there were so many state agencies opposed to the bill, mainly I think because they didn’t understand it,” she said. “They thought it would interfere with their constitutionally collected state data that they collect and give to the federal government in order to get their state money, and in no way does this bill do that.”
In addition, several companies, especially in the telecommunications industry, have criticized the bill. Ward said this is because the federal government often forces them to hand over information, and the companies don’t want to be caught between contradictory state and federal laws.
She said several amendments to the Fourth Amendment Protection Act are being created to respond to these concerns and earn the support of corporations and state agencies.
A member of of one of these skeptical state organizations is Lyle Mann, director of the Arizona Peace Officers Standards and Training Board, which represents law enforcement officers in Arizona.
He said the complexity of data collection causes most state officials to often be unaware of the sources of their data when the NSA provides it. Therefore, because the officials cannot know if the information was collected constitutionally, they won’t know if they are allowed to use it, and so Ward’s bill will be very difficult to enforce.
“The issues that I have, that law enforcement has, is that, number one, we don’t know if a federal agency, who claims to have the power to collect electronic data, we don’t know which of that data is based on a warrant or not,” Mann said.
He said even if state officials asked a federal agent where the data came from, they likely wouldn’t be able to answer because of the secrecy of their proceedings, which often use grand juries.
Sometimes, even when information is obtained illegally, there is a possibility it should still be used by law enforcement in the name of security, Mann said.
"If you get information that you know is true, but the way you got it was illegal, should you or shouldn’t you use that information for the greater good?” he asked. “That’s an ethical question. That’s where this bill puts officers right now.”
Mann said voters should fundamentally focus on the information itself and how it's used, rather than the way it is collected. He went on to explain that modern corporations pose a bigger threat of data intrusion than the NSA.
“It’s not just the government, it’s Google,” Mann said. “If you go on Google right now, and you type in 'Shoes for Friday night,' the next three or four times you sign onto your computer, you're going to be barraged with ads for shoes, because they've tracked you, and they know what it is you're doing.”
He said this will soon lead to companies such as Google being able to view personal emails, addresses and other preferences in order to provide the maximum number of suggestions possible throughout the day.
“I don’t know if that's what (younger generations) want, but that’s the capability of the information seeking that is out there,” Mann said. “And the government isn’t even the biggest part of this, and that’s where my concern is for into the future. You guys need to think about that information and what kind of controls need to be on the information.”
At ASU, Jacob Pritchett, president of the University’s chapter of Young Americans for Liberty, has taken action to support the ideas of the Fourth Amendment Protection Act, including an on-campus demonstration and petition-signing event Tuesday.
Students can also sign the petition online at Change.org.
Pritchett said Young Americans for Liberty's goal is to educate, train and mobilize students across the country to ensure the protection of civil liberties. He said the ASU chapter is made up of students from all across the political spectrum, though they generally believe in minimizing government power.
The club feels very strongly about the NSA’s violations of civil liberties and about the protections of freedom in general, Pritchett said.
“We feel that just by virtue of being human we have a certain set of inalienable rights,” he said. “If government has to exist, it can only be to protect the liberties of individuals, so government exists to protect life, liberty and property. When government goes outside that scope, it usually starts to do the things it was invented to try and prevent.”
Pritchett said the case of the NSA is a perfect example of this, as it is an agency designed to protect Americans, though it now intrudes on them and violates their constitutional rights.
“That’s really what the NSA is doing right now," he said. "They're using blanket authorizations to collect. We know that they have a way to turn our webcams on without the indicator light; they can hack into computers without them being connected to the Internet using sound waves. This isn’t just conspiracy stuff. This is from leaked documents that show they're doing these things. They read your text messages and they hear your phone calls.”
Beyond the basic violation of the Fourth Amendment, Pritchett said one of the NSA’s worst crimes is its use of warrantless data in court, something the Arizona bill is trying to prevent.
“We’re guaranteed a fair trial as Americans under our justice system, but the NSA started secretly funneling information they obtained through data gathering and feeding it to law enforcement agencies to convict people they believe committed crimes,” he said. “Now we actually have cases in which the defense for someone committing a crime doesn’t even know the extent of the persecutor’s case against them. I think that’s a gross perversion of the justice system because they're actually lying about where the information comes from.”
ASU has a partnership with the NSA, which includes a Center for Academic Excellence, a facility run by the federal agency to facilitate ASU student research in the fields of data analysis and produce skilled professionals to work in the interest of national security.
Pritchett said the ASU chapter of YAL wrote a letter to the ASU administration, now published online, demanding that the University not support the NSA in its violations of civil liberties, though the University clearly has a conflict of interest.
“It’s a win-win for ASU and the NSA,” he said. “But the people who are losing are the University students. This is a public university and we provide a service for American citizens, and I don’t think it’s appropriate that ASU is actually lobbying against this bill for fear of losing their research partnership, potentially at the expense of their students’ constitutional rights.”
Pritchett said though the club, as a registered nonprofit organization, isn’t allowed to support individuals, political figures or legislation, YAL supports the ideas of protecting citizens’ rights that is also behind bills like Ward’s Fourth Amendment Protection Act.
He said his message for ASU students was to stay aware of their political surroundings and evaluate what they want from their federal government.
“Don’t think this doesn't affect you; it affects everybody,” Pritchett said. “If you like how the government was in "1984," then you should have no problem with this. But if you don’t want a massive surveillance state, then you should take action to keep this from happening, because it’s a slippery slope. History shows that once governments get power, they don’t give it up, they just grow their power.”
Reach the reporter at elmahone@asu.edu or follow her Twitter @mahoneysthename
