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Wednesday, May 21, 2014

California Bill Seeks to Oppose NSA Surveillance

Reuters reports:

The federal government would need a warrant from a judge if it wants the cooperation of California officials in searching residents' cellphone and computer records, under a bill making its way through the state legislature.

The bill, which passed the state Senate with just one opposing vote on Monday, was introduced in the wake of information leaked by former National Security Agency contractor Edward Snowden showing massive internal surveillance of U.S. citizens by the NSA.
The bill is SB 828, and the text of the bill is available here. It would add a section to the California Government code that would read:

The state shall not provide material support, participation, or assistance to any federal agency attempting the illegal and unconstitutional collection of electronic data or metadata, without consent, of any person not based on a valid warrant that particularly describes the person, place, and thing to be searched or seized, seized or a court order, or in accordance with judicially recognized exceptions to warrant requirements. 
That is the text that appears on the legislature's website, my understanding is that the bill would appear without the struck-through "seized" and with the italic words included as a normal part of the text, but I thought I should include the full text as it appears on the government's website.

I think that the bill will be ineffective, however, for two reasons.

First, the bill may fail to become law. If Governor Jerry Brown refuses to sign the bill, this section will not be added to the code. And Governor Brown has been reluctant to sign laws that limit law enforcement officers' abilities to obtain online information -- I blogged a while back about Governor Brown's veto of SB 467 that would have required police to obtain a warrant before obtaining the contents of electronic communications. In light of Governor Brown's prior veto practices, SB 828 faces a high likelihood of being halted at the executive level.

Second, even if the bill passes, much of the NSA's surveillance practices are proposed to and approved by the Foreign Intelligence Surveillance Court, or FISA Court. Critics note that the FISA Court's rulings are almost always classified, and that the court approves the vast majority of the government's requests to obtain information.

But even though the FISA Court's rulings are almost always classified and favorable to the government, the rulings presumably constitute a "court order" within the meaning of SB 828. So the critics who argue against the NSA's practices and the ineffectiveness of the FISA Court as a check on these practices will be disappointed by this bill, which leaves an avenue for the NSA to continue its surveillance with California's support as long as the FISA Court has cleared the NSA's request to obtain information.

The bill, if passed, would at least be a state-level statement protesting the NSA's actions, and contending that the agency's surveillance techniques are unconstitutional. But practically, the bill will make little difference.

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