The NSA and Federalism

Rising Controversy

Around early June 2013, fears about the pervasive reach of our intelligence services soared to unprecedented levels with the recent revelations about the National Security Agency’s massive data collection program, which gobbles up citizens’ phone and internet records in hopes of finding terrorists. By triggering a debate about mass surveillance, Edward Snowden succeeded far beyond what anyone could imagine. His disclosures about the NSA resonated not only with Americans but with the rest of the world as well.

How much did the Founding Fathers worry about what they called “general warrants,” or broad-based searches not prompted by reasonable evidence of criminal activity? Admittedly, the framers of the Constitution and the Bill of Rights could never have fathomed the technological advances behind cell phones and the internet that have presented the opportunity for such massive technological snooping. Nor could they have envisioned terrorists’ capabilities of wreaking massive death and destruction with weapons ranging from airplanes to nuclear bombs.

Even so, the fear of the arbitrary use of searches, seizures, and arrests, was ever-present among America’s Founders. The dread of this species of government tyranny led ultimately to the adoption of the Fourth Amendment to the Constitution, which states that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

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States Fight Back

A bill filed late last month in Missouri would take a step into fixing the breach left by a federal government unwilling to restrain the unconstitutional surveillance of Americans.

The bill, HB 264, or the Missouri Fourth Amendment Protection Act, was filed by state representative Keith Frederick and would not only offer support to the effort of sister states to shut down the NSA’s facilities, but would mandate that counties, cities, and towns in the state:

"...shall not assist, participate with, or provide material support or resources to enable or facilitate a federal agency in the collection or use of a person’s electronic data or metadata without such person’s informed consent, or without a warrant, based upon probable cause that particularly describes the person, place, or thing to be searched or seized, or without acting in accordance with a legally-recognized exception to the warrant requirements."

To its credit, rather than wrangle over what is or is not included in the constitutional definition of the “persons, houses, papers, or effects” protected from unreasonable searches and seizures by the Fourth Amendment, the bill passed by the Missouri legislature explicitly places “electronic data and communication” within the Fourth Amendment’s safeguards.

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Are the pros > cons?

Even if the digital revolution and “big data” were not on the Founders’ horizon, they still laid down basic principles that can help guide us on the NSA controversy. Yes, the Constitution empowered the national government to “provide for the common defense,” and surely one of the government’s key duties today is to discover and disrupt terrorist plots. However, the Founders also knew that any power given by the government was easily susceptible to abuse.

Few among us would balk at the government energetically pursuing actual terrorist suspects. But the NSA revelations confirm that since 9/11, the American government has become a gargantuan surveillance state with dangerously few limitations. I am confident that NSA operatives are, by and large, really intent on stopping terrorists. But as we see in today’s Middle East, the term “terrorists” can easily morph into a term for one’s political enemies. How much would it take for NSA-style surveillance to turn its focus to journalists, opposition politicians, advocacy groups, and ordinary citizens who fall out of favor with our all-seeing national government?

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