Arizona may be the first state to consider legislation designed to hinder the National Security Agency’s ability to spy within its borders.
Sen. Kelli Ward, R-Lake Havasu City, announced Dec. 9 she’ll introduce legislation next session to “nullify” the NSA’s capabilities in Arizona by encouraging state agencies, counties, municipalities and local law enforcement to refuse to cooperate with NSA operations.
Information collected by the NSA without a warrant would be banned from use by law enforcement and deemed inadmissible in court, Ward said.
Agencies and companies would face penalties if they aid the NSA and state funding would be cut off in the case of agencies and municipalities. Companies that, for example, provide water or electricity to NSA facilities in Arizona would be banned from contracting with the state at any level of government.
Ward said the 4th Amendment Protection Act, model legislation pushed by constitutional-rights organization the Tenth Amendment Center, isn’t meant to punish local governments and state agencies, but is more of a disincentive to the NSA if it wants to conduct surveillance in Arizona.
“They’re not penalties in the sense of a legal penalty, like a fine,” said Mike Maharrey, spokesman for the Tenth Amendment Center.
Outrage over the NSA’s widespread phone and Internet surveillance programs, and a lack of response from lawmakers in Washington, D.C., prompted the Tenth Amendment Center to seek a remedy at the state level, Maharrey said.
An NSA spokeswoman declined to comment on what, if any, presence the agency has in Arizona, noting that the “NSA is a foreign intelligence agency.”
“You may want to contact the FBI or the Department of Homeland Security, which have domestic missions,” spokeswoman Vanee Vines wrote in an email.
Ward, who last session unsuccessfully proposed a bill to protect 2nd Amendment rights in Arizona by ignoring certain federal gun laws, was an obvious choice as sponsor.
Her 2013 gun bill attempted to nullify the enforcement of federal gun laws in Arizona. It ran afoul of a bevy of constitutional concerns when analyzed by the Senate’s attorney, who determined the bill would have violated the Supremacy Clause, interstate commerce regulations and the separation of powers under the U.S. Constitution.
Promoting state sovereignty
The 4th Amendment Protection Act would join a long list of recent legislation promoting state sovereignty and resistance to federal or global initiatives, most of which have failed to pass the muster of the Legislature or voters.
Sen. Judy Burges, R-Sun City West, has for several years introduced legislation to prohibit Arizona state officials or local governments from abiding by a United Nations list of sustainable development principles, citing the “seductive evils” of the voluntary program.
And Sen. Chester Crandell, R-Heber, has continued to propose legislation resisting the reach of the federal government. A ballot provision on state sovereignty in 2012, Proposition 120, would have given Arizona exclusive authority over all air, water and public lands within the state’s borders, but was soundly rejected by voters.
Crandell successfully sponsored another referendum in 2013, which will be placed on ballots next November. It would amend the state Constitution to allow Arizona to restrict the state’s resources from being used to cooperate with any federal action the state doesn’t approve of.
On solid footing
Ward said the NSA’s actions are “a definite violation” of the 4th Amendment, and that unlike her previous gun legislation, the state would have strong legal ground to resist assisting the agency in any way.
“If you look at this bill and you look at the legal basis for this bill, we’re on solid footing,” Ward said. “The Supreme Court has made it clear that the state doesn’t have to help the federal government implement its programs.”
The legislation proposed by the Tenth Amendment Center was first designed to cripple NSA operations in Bluffdale, Utah, where the agency agreed to a contract with local officials who will provide water to a $1.5 billion data center.
The bill would, in effect, nullify the contract and withhold state funding to the municipality the following fiscal year.
Penalties such as withholding funds for Arizona municipalities would be problematic, according to William Bock, general counsel for the League of Arizona Cities and Towns. It’s also unclear how it would be determined if an entity was willfully assisting the NSA.
There could be unintended consequences to passing a law similar to efforts in Utah, Bock said.
“If that’s kind of what they’re getting at, just the practical implementation of that I think would be difficult,” Bock said. “How do you know, just because the NSA is setting up an office and needs water or electricity and you provide it to them, do you have to investigate them and make sure they haven’t done any of those searches that violate the state?”
No sponsors in other states
No lawmaker has stepped forward publicly in Utah or other states to sponsor the Tenth Amendment Center’s legislation. Maharrey said he has a “soft commitment” from a Utah lawmaker, who he declined to identify, and a similar commitment by a potential sponsor in Washington state.
Arizona is the first state where a lawmaker has committed to sponsoring the bill.
“While media attention is focused on a possible effort to shut off water to the NSA data center in Utah, I’m introducing the 4th Amendment Protection Act to back our neighbors up,” Ward said in a statement. “Just in case the NSA gets any ideas about moving south, I want them to know the NSA isn’t welcome in Arizona unless it follows the Constitution.”
How the bill would affect utilities in Arizona such as APS, which have a monopoly on providing services to certain markets, would likely have to be worked out in court, Maharrey observed. He said existing state laws and the terms of existing contracts would mean the bill’s impact may vary from state to state.
“The law would create those conflicts, and then it would be up to state courts to determine how to deal with those situations,” he said.
The NSA doesn’t have a data or “threat operations” center in Arizona, Maharrey said, but two state universities with partnerships with the NSA could be affected. The University of Arizona and Arizona State University are both on the NSA’s list of “Centers of Academic Excellence,” which promotes research in national information infrastructure and encourages the development of young professionals in the field.
The universities would be barred from participating in the program if the bill were to pass, or risk losing state funding.
Bock said concerns and outrage over the NSA’s surveillance programs are understandable, but questioned if a state fix is the best solution.
“I’d rather see the problems inherent with the NSA be addressed by the federal government,” Bock said. “To place the burden on the cities and towns seems unreasonable.”
Ward plans to introduce new 2nd Amendment rights bill
After unsuccessfully pushing legislation to defend Arizonans’ 2nd Amendment rights in 2013, Sen. Kelli Ward is preparing to try again during next year’s legislative session.
The Lake Havasu City Republican told the Arizona Capitol Times she’ll file another bill, similar to 2013’s SB 1112, that would attempt to prevent certain federal gun laws from being enforced in Arizona.
Guns manufactured and owned within Arizona’s borders would also be made exempt from any federal gun law, according to Ward’s 2013 legislation.
Ward’s previous attempt to pass such legislation failed after Senate Rules Attorney Stacey Weltsch told lawmakers she had no doubt the measure would be struck down in court — that various portions of the law would have violated the Supremacy Clause, interstate commerce regulations and the separation of powers under the U.S. Constitution.
Despite Weltsch’s warnings, Ward’s bill still cleared the Rules Committee in 2013, but could never gather enough votes to pass on the Senate floor. Strong objections from Senate Democrats, as well as concerns from some GOP lawmakers, left it clear the bill lacked enough votes for approval.
The bill was held on the Senate floor, never coming up for a vote.
Ward told the Capitol Times the latest iteration of her 2nd Amendment Protection Act, modeled after legislation promoted by the constitutional-rights organization the Tenth Amendment Center and gun-rights advocates, remains similar in its goal to prevent Arizona from actively working to enforce certain federal gun laws.
SB 1112 would have banned the enforcement of federal laws limiting semiautomatic weapons and high-capacity magazines.
“There are some similarities in terms of not allowing state resources to provide material support for infringement of our 2nd Amendment rights,” Ward said.
Ward, who declined to share the draft of her legislation, said at least one change would be the elimination of penalties for federal officials who violate her gun law.
SB 1112 made the violation of Ward’s gun protection bill a felony offense.
“It doesn’t have penalties for federal agents as it did last year, but there are penalties for state entities that choose to go down that path and disarm law abiding citizens,” Ward said.