If the federal government wants help rifling through the electronic data of California citizens, it must show it has a valid warrant to ensure state agency cooperation, under a bill being considered by lawmakers.
The 4th Amendment Protection Act – SB 828 – prohibits California agencies from providing material assistance to federal agencies seeking metadata, phone data, Internet use records or other forms of electronic information on state residents without a warrant that describes who or what is being searched or seized. The measure passed the California Senate on May 19, and is now being evaluated by the State Assembly.
In an interview with Government Technology, Sen. Ted Lieu, D-Torrance, explained that the measure was a direct response to activities such as the U.S. National Security Agency’s bulk data collection program, which violates the privacy rights contained in the 4th Amendment of the U.S. Constitution.
“The NSA has been seizing the phone records of every American for at least the last seven years,” Lieu said. “Hundreds of millions of our records [were taken] without any specific warrants. And the 4th Amendment is very clear. It says that government cannot engage in unreasonable searches or seizures unless there is a specific warrant. And by any definition, having a dragnet of every American is unreasonable. We are not somehow reasonably suspicious because we use a phone.”
California isn’t the only state considering a bill that would restrict state cooperation with Uncle Sam regarding data collection. Eight other states, including Alaska, Arizona and Oklahoma, are running similar state measures.
The California legislation isn’t universally supported, however. The California District Attorneys Association (CDAA) is opposed to the bill on the grounds that it is too vague. In comparison to other state measures, SB 828 is comparatively tiny, running less than 100 words.
Sean Hoffman, legislation director for the CDAA, explained that when he and others in the organization reviewed the bill, they noted that it didn’t define what metadata was. After searching through all of California’s statutes, they discovered the term wasn’t defined anywhere in state. So the CDAA would like to see the types of data better defined in SB 828.
Hoffman added that his organization isn’t opposed to what the bill is trying to accomplish. But the CDAA is concerned about the broader impact SB 828 could have and whether it can be made more specific.
“We think you could reasonably read this as once a federal agency has engaged in this sort of [illegal data gathering] activity, that cuts off any support, participation or assistance from California,” Hoffman said. “That would have tremendous repercussions and we could end up in situations where we couldn’t cooperate … with the FBI, Department of Justice and other entities. Additionally, it could go as far as not being able to cooperate with the Social Security Administration, the IRS and so forth.”
Despite those concerns, Lieu was optimistic that SB 828 would get through the Assembly and to Gov. Edmund G. Brown’s desk, noting that the measure has broad bi-partisan support. He also felt the measure was on solid legal footing.
“There is no provision in the U.S. Constitution that says states have to cooperate with federal agencies absent a specific congressional law,” Lieu said. “There’s nothing out there that says we in California have to cooperate with immigration officials at the federal level, or in this case, with the NSA.”
At press time on May 29, SB 828 had been read once by the Assembly, but had not been assigned to a committee.
Brian Heaton was a writer for Government Technology magazine from 2011 to mid-2015.