On Tuesday September 30th, California governor Jerry Brown signed SB 828 , otherwise known as the Fourth Amendment Protection Act, into law making California the first state in the union to push back against unconstitutional NSA mass surveillance. The bill makes state-level participation or cooperation with federal surveillance operations a crime if the state agency knows the spying is unlawful. SB 828 is the product of the BORDC/ Tenth Amendment Center -led OffNow coalition . OffNow represents a grassroots led transpartisan network of organizations that crosses political, racial and generational lines to work together to restore constitutional protections in the face of unprecedented levels of governmental surveillance.
The bill was authored by progressive Ted Liu (D) of Torrance CA and cosponsored by tea-party affiliated Joel Anderson (R) of Temecula CA. Commenting on the bill’s passage, Sen. Liu told the LA Times :
“I commend Gov. Brown for recognizing that the National Security Agency’s massive and indiscriminate collecting of phone and electronic data on all Americans, including more than 38 million Californians, is a threat to our liberty and freedom.”
In practical effect, the bill will allow California law enforcement entities to withdraw participation, funding and personnel commitments to unlawful surveillance efforts led by the federal government. The NSA, FBI, DEA and other federal law enforcement agencies often rely on state participation to effectuate mass surveillance. The legality of these surveillance programs have come under increasing scrutiny since last year when whistleblower Edward Snowden revealed that the NSA was engaged in systematic mass surveillance of people living inside the United States without a warrant or clear legal basis. SB 828 permits California agencies to question the constitutional legitimacy of these spying programs and asserts the state’s ability to refuse support to surveillance efforts without lawful authorization.
There has been no action at the federal level to address or curtail NSA spying since the Snowden disclosures. This has left the states in murky territory when evaluating state and federal law enforcement partnerships. Without state level action to protect Fourth Amendment principles, law enforcement officers run the risk of violating the Constitution through their complicity in spying programs like those operated by the NSA. The passage of SB 828 marks the first incident of decisive state action in defense of the Constitution.
The bill was amended several times during its journey through the Senate and Assembly. A final amendment required that a state agency know a federal spying program is unlawful before withdrawing participation. The knowledge requirement limits the effect of the bill from the original version, which would have permitted withdrawal if the state suspected a federal spying program to be unlawful. However, it does not leave the bill without teeth. Subject to federal preemption , California may use state law when evaluating the legality of federal programs. California law has stronger protections for individual privacy than federal law. The state standard will ensure a higher degree of constitutional protection for California residents, even though the bill covers less than the original version imagined.
The success of SB 828 is largely due to the diverse grassroots transpartisan coalition that developed in support of the legislation. OffNow coalition member Tracy Rosenberg of Media Alliance had this to say about the galvanizing impact of the bill:
“SB 828 represents the indignant howl of Americans who know that the government tracking their every move does not make them more safe. It makes them less free. When the legal system catches up with the Constitution, SB 828 will be seen as one of the early strikes against government monitoring of electronic communications.”
The OffNow effort to enact reforms on federal surveillance partnerships with the states is not limited only to California, and the effort is far from over. The success of SB 828 is a needed gust of wind in the sails of the many other states with similar legislation pending or planned for next year.
Are you interested in pushing back against unwarranted mass surveillance? If so, contact organizing@bordc.org to find out what you can do to defend the Bill Of Rights and restore constitutional protections in your state.