Unwilling to wait for congressional action, a first-term state legislator is attempting to clip the wings of the National Security Agency, at least in Arizona.
The proposal by Sen. Kelli Ward, R-Lake Havasu City, would require state and local government to refuse to help the spy agency unless it first produced a search warrant signed by a judge. The measure would preclude Arizona police agencies and courts from using any information gathered by the NSA without a warrant.
Ward said Tuesday she also wants to bar the use of any state resources or personnel to help the agency unless it is pursuant to a court order. That, said Ward, could even include denying utility services.
The measure, if approved, would make Arizona the first state in the nation to impose such restrictions. But it might not be the last: The same plan is also being marketed to legislators nationwide by the OffNow Coalition, a group of organizations specifically formed to battle NSA spying.
Ward said she wants to do what she can to prevent spying by the federal government on its own citizens, at least not without a court-issued warrant “that particularly describes the persons, places and things to be searched or seized.”
What Ward said she is particularly trying to attack is what she calls the indiscriminate scooping up of data.
The agency has come under particular scrutiny after the leaks by former NSA analyst Edward Snowden for keeping track of phone calls — at least the numbers called if not the actual content — as well as information from e-mails and even social media sites. But that, she said, is just part of the problem.
“I heard that the federal government is able to possibly turn on your camera on your phone or turn on the camera on your computer without your knowing it,” Ward said.
And the advice given, she said, included turning off the Internet on devices when they're not being used and not to have your phone or computer in a private area.
“I think my whole entire house is private,” she said. “I shouldn't have to just not have my phone in the bathroom or the bedroom.”
Ward said the last piece of advice was put a piece of tape over the camera lens and microphone of your cell phone and computer to block the images and muffle the sound.
All that, she said, is not an answer.
An NSA spokesman declined to comment on the legislation or the reports about its activities which has led to it.
Ward acknowledged that while she believes the NSA's actions violate Fourth Amendment rights against unreasonable search and seizure, they may, in fact, be authorized by Congress.
“I hope that our federal delegation will work on that,” she said. But Ward said that does not preclude the state from throwing up whatever legal roadblocks it can.
Michael Maharrey, spokesman for the Tenth Amendment Center, a member of the OffNow Coalition, said nothing in the legislation is improper.
“We think that the states should act on behalf of their people and refuse to cooperate with the NSA,” he said. “The state is perfectly within its legal rights to refuse to cooperate with the federal government on anything.”
Ward said the refusal to cooperate could range from a police agency ignoring a request by the NSA for help to shutting off the water.
That latter action may have little effect in Arizona where there is no obvious NSA office, but Maharrey said it could cripple the agency's massive data storage center in Utah if similar legislation passes there.
Inherent in the argument is whether the NSA plays a legitimate role in national security.
The Obama administration has defended the NSA actions as both authorized by Congress and necessary to protect security. Ward, however, said she's not buying it.
“I'm not one that believes that giving up our liberty is going to lead to increased security,” she said. “And I just think we need to be free and we need to maintain our liberty.”
More to the point, Ward said the agency is acting illegally in collecting any data on U.S. citizens without a specific warrant.
That point, though, may be up for debate.
A declassified opinion of a secret court set up under the Federal Intelligence Surveillance Act has upheld as constitutional the NSA collecting data on phone records. The court ruled that gathering the data is justified as long as the government can show it is relevant to authorized investigations into known and unknown terrorists who may be in this country.
And the court said the government had to show only “reasonable grounds” to believe the records are relevant, a standard far more lax than what police and prosecutors generally need for search warrants.
But Maharrey said that doesn't make the agency's actions legal.
“I would argue that the FISA courts are not a constitutionally legitimate way to circumvent the Fourth Amendment,” he said. Maharrey said he is undeterred in his belief despite the fact that the U.S. Supreme Court has not reined in the NSA activities, calling that a “technical argument.”
“The Supreme Court said it was perfectly legitimate to lock Japanese-American citizens up behind barbed wire,” he said.
“You'll forgive me if I'm not real thrilled about what the Supreme Court does or does not say,” Maharrey continued. “I think the average American looks at the way the NSA is operating today and common sense says this is not in keeping with the Fourth Amendment.”