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Arizona first US state to attempt legal resistance to NSA surveillance

Published time: February 05, 2014 09:55
Civil liberties activists hold a rally against surveillance of US citizens (AFP / Nicholas Kamm)

Civil liberties activists hold a rally against surveillance of US citizens (AFP / Nicholas Kamm)

Arizona’s state senate panel approved a bill withdrawing state support for intelligence agencies’ collection of metadata and banning the use of warrantless data in courts. The panel becomes the first legislative body in US to try and thwart NSA spying.

The bill will now have to be approved by majority of the Senate Rules committee before it can move on to the full senate. It prohibits Arizona public employees and departments from helping intelligence agencies collect records of phone-calls and emails, as well as metadata (information on where and when the phone calls were made).

It also proscribes the use of information obtained warrants in state courts.

The bill is entitled the 4th Amendment Protection Act and was introduced by Republican Senator Kelli Ward of Lake Havasu City. It was passed on Monday by the Senate’s Government and Environment committee with a 4-2 vote.

"The 10th Amendment allows states to stand up against unconstitutional federal law," Ward said, as cited by AP. "It's a state issue because many times the NSA is turning that information over to our local and state law enforcement and using that in cases that are basic criminal prosecutions, not anything to do with terrorism."

The bill faced significant opposition from state agencies, however, raising fears the legislation could make Arizona vulnerable in case of a terrorist attack. This concern was voiced by Lyle Mann, director of the Arizona Peace Officers Standards and Training Board.

An officer could be given information — important information: a shooting, a terrorist attack, whatever it is you want to talk about - but they cannot confirm that the information came from a warrant-covered source. But if they do nothing with the information, something bad is going to happen,” Mann said as cited by Capitol Media Services.

Ward responded by saying that if there was a real threat there would be no problem for the police in obtaining a warrant to seize whatever information they needed. She added that allowing warrantless gathering of metadata was “a slippery slope” to a loss of individual rights.

We can’t sacrifice our liberty in the name of security. That is one of the main things I’m trying to balance. I don’t think we should be giving up liberties, especially liberties that are guaranteed to us in our Constitution under our Fourth Amendment rights in the interest of security, even if it is terrorism or child pornography,” Ward said.

The bill is based on model legislation drafted by the OffNow Coalition, a civil liberties group, opposing NSA surveillance, which believes the bill’s most important part is prohibiting the use of warrantless information in courts.

While Arizona might not be able to physically stop the NSA and other federal agencies from collecting our data without a warrant, legislation such as this can significantly reduce the practical effect of what they are trying to do with it. Namely, use it within the states for non-terror criminal cases, which is a gross violation of the 4th Amendment,” Shane Trejo of OffNow said as posted at the group’s website.

Critics of the bill say it could be unconstitutional, as it challenges the supremacy of the federal government.

"The federal law is supreme and the state has to follow it," said Paul Bender, a constitutional law professor at Arizona state University's law school, as cited by AP.

Even if passed by the Arizona state senate, the bill could still be blocked by federal courts, as previously happened with the state’s efforts to control immigration reform and push the limits of abortion restrictions.