(Photo: EFF Photos / Flickr)In her
2004 Brooklyn Law Review article,
Ann Althouse offered some powerful suggestions on how to resist
"anti-terrorism" powers, such as the Patriot Act, and should be seen as a
guide to resisting NSA spying:
The fight against terrorism has raised concerns that the federal
government has overreached its legitimate power. Concerns about racial
profiling, invasions of privacy, unreasonable searches, and infringement
on free speech have fueled a political movement, led by groups such as
the American Civil Liberties Union and the Bill of Rights Defense
Committee (BORDC), urging state and local government to adopt
resolutions directing their officials not to participate in at least
some aspects of the antiterrorism effort.
More on applying this to the NSA in a moment. First, is this legal?
The Doctrine
The ACLU and BORDC resolutions against the Patriot Act (and subsequent
ACLU-backed state laws refusing to comply with the 2005
REAL ID Act) were based on a widely accepted legal principle known as the "anticommandeering doctrine."
This means the federal government cannot require a state to carry out
federal acts. The federal government can pass a law and try to enforce
it, but your state isn't required to help them.
The US Supreme Court has repeatedly affirmed anticommandeering, relevant court cases being:
* 1842 Prigg: The court held that states weren't required to enforce federal slavery laws.
* 1992 New York: The court held that Congress couldn't require states to enact specified waste disposal regulations.
* 1997 Printz: The court held that "the federal government may not
compel the states to enact or administer a federal regulatory program."
Under this doctrine, Althouse noted that "state and local government
officials, if they have the nerve, will be able to decline to carry out
the anti-terrorism tasks Congress or the president attempts to assign to
them."
Applied to NSA
This can have a significant impact on the NSA's ability to continue its mass-spying programs.
In 2006,
the Baltimore Sun reported that the NSA had maxed out the capacity of the Baltimore-area power grid:
The NSA is already unable to install some costly and sophisticated
new equipment. At minimum, the problem could produce disruptions leading
to outages and power surges. At worst, it could force a virtual
shutdown of the agency.
To get around the physical limitation of the amount of power required
to monitor virtually every piece of communication around the globe, the
NSA started searching for new locations with independent resources.
A location was chosen in San Antonio because of the independent power
grid in Texas. The new Utah Data Center was chosen for access to cheap
utilities, primarily water. The water-cooled supercomputers there
require 1.7 million gallons of water per day to function.
That water is being supplied by a political subdivision of the State
of Utah. Under the anticommandeering doctrine, Utah isn't required to
provide that water.
No water = No NSA data center.
But it's not just Utah, and it's not just water. The war on drugs, for example, is a major benefactor of NSA data collection.
According to the Electronic Frontier Foundation
(EFF), the DEA's Special Operations Division works closely with the
NSA, passing "tips" along to local law enforcement and instructing them
to cover their tracks so the public doesn't learn where the information
came from.
EFF calls this "intelligence laundering," which flat-out "bypasses the Constitution."
The Act
Following the lead of the ACLU and BORDC, model legislation to refuse
cooperation with the NSA is now available for introduction in your
state. The 4th Amendment
Protection Act would
ban states like Utah from providing water, or Texas from providing
electricity, to NSA data centers. It would also ban law enforcement from
receiving "tips" from the DEA's special operations division.
In addition, the Act prevents state-run universities from partnering
with the NSA. Currently there are 166 so-called "Centers of Academic
Excellence" around the country. These schools are major research and
recruiting centers for the agency.
Corporations could find themselves in trouble, too, under the proposed Act:
Any corporation or person that provides services to or on behalf of
this state and violates the prohibitions of Section 2 of this act shall
be forever ineligible to act on behalf of, or provide services to, this
state or any political subdivision of this state.
As a result,
corporations like
Georgia Power, Rocky Mountain Power, Big-D Construction or
Intercontinental Hotels just might give pause before signing a new
contract to provide services to the NSA.
Can It Work?
This same process was used effectively by northern abolitionists in
resistance to the Fugitive Slave Act of 1850. Today, states like
Washington and Colorado are helping end the war on cannabis by refusing
to comply with federal prohibition.
We should follow their courageous path against the NSA as well.
Calling your state representative and senator today
and encouraging them to introduce and pass the 4th Amendment Protection
Act would be a good first step. It's not going to be easy, but sooner
or later, we're going to have to stop putting up with it.
Rosa Parks may have put it best:
People always say that I didn't give up my seat because I was tired,
but that isn't true. I was not tired physically, or no more tired than I
usually was at the end of a working day. I was not old, although some
people have an image of me as being old then. I was forty-two. No, the
only tired I was, was tired of giving in.