“IMPORTANT PRIVACY PROTECTIONS”

by Mike Maharrey, The Tenth Amendment Center

The OffNow coalition is group of grassroots organizations and individuals spanning the political spectrum committed to stopping unconstitutional NSA spying through state and local activism.

(Apr. 3, 2014) — SALT LAKE CITY, April 2, 2014 – On Monday, Utah Gov. Gary Herbert signed a bill into law that will thwart some of the effects of the growing surveillance state.

HB0128 passed the state Senate by a vote of 28-0 and the House by a vote of 71-2. It makes any electronic data obtained by law enforcement without a warrant inadmissible in a criminal proceeding. This includes data gathered by the NSA and shared through the super secret Special Operations Division (SOD) or fusion centers. The new law also stops Utah law enforcement from obtaining phone location data without a warrant. It reads, in part:

Except as provided in Subsection (1)(c), a government entity may not use, copy, or disclose, for any purpose, the location information, stored data, or transmitted data of an electronic device that is not the subject of the warrant that is collected as part of an effort to obtain the location information, stored data, or transmitted data of the electronic device that is the subject of the warrant in Subsection (1)(a).

Utah based Libertas Institute president Connor Boyack said the bill will codify important privacy protections into law.

“While the Fourth amendment protects our ‘effects’ from searches and seizure without a warrant, modern technology has outpaced its application. Police agencies around the country use tools and tactics that violate this constitutional guarantee in order to obtain the location or data of a cell phone or other digital device. HB128 statutorily makes clear that our digital property is part of our ‘effects’ that are to only be obtained with judicial oversight, a particular suspicion of crime, and a warrant,” he said.

This law will not only protect people in Utah from warrantless data gathering by state and local law enforcement, it will also end some practical effects of unconstitutional data gathering by the federal government.

NSA collects, stores, and analyzes data on countless millions of people without a warrant, and without even the mere suspicion of criminal activity. It also tracks, along with other federal agencies like the FBI, the physical location of people through their cellphones. In late 2013, the Washington Post reported that NSA is “gathering nearly 5 billion records a day on the whereabouts of cellphones around the world.” This includes location data on “tens of millions” of Americans each year – without a warrant.

Through fusion centers, state and local law enforcement act as information recipients from various federal departments under Information Sharing Environment (ISE). Federal partners for ISE include the Office of Director of National Intelligence, which is an umbrella covering 17 federal agencies and organizations, including the NSA. State and local law enforcement share data up the chain with the feds.

Last fall, the public learned that the NSA expressly shares warrantless data with state and local law enforcement through a super-secret DEA unit known as the Special Operations Division (SOD). And, from a Reuters special report the public learned that most of this shared data has absolutely nothing to do with national security issues. Most of it involves routine criminal investigations.

This data sharing shoves a dagger into the heart of the Fourth Amendment. HB0128 will now prevent state law enforcement from gathering cell phone location data and sharing it up the chain, and it will make information vacuumed up by the feds and shared down the chain inadmissible in court, stopping a practical effect of NSA spying.

The legislation works hand-in-hand with the more well-known “4th Amendment Protection Act” introduced by Rep. Marc Roberts this year. That legislation would ban material support to the NSA’s new data center at Bluffdale. Supporters urge the rallying cry of “no water = no NSA data center” in support of the proposal. The bill was referred to interim study where it will have public hearings between now and December before further consideration in early 2015.

HB128 takes effect on July 1, 2014.

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