By Gary Walker
Outraged by the National Security Agency’s sweeping domestic spying program, a lawmaker who represents Westside neighborhoods in Sacramento wants to make it illegal for state employees and contractors to help the federal officials collect data on Californians without a search warrant.
State Sen. Ted Lieu (D- Torrance), whose district includes Marina del Rey, Venice and Westchester, introduced the “The Fourth Amendment Protection Act” on Monday with a Republican co-author, state Sen. Joel Anderson of San Diego.
Senate Bill 828 would specifically prohibit state agencies and corporations working for the state to provide “material support, participation or assistance in any form to a federal agency that claims the power, by virtue of any federal law, rule, regulation or order to collect electronic data or metadata of any person pursuant to any action not based on a warrant.”
Lieu described the federal government’s collection of telephone and electronic data on its citizens as “a direct threat to our liberty and freedom,” namely constitutional prohibitions against unreasonable search and seizure.
While he acknowledges that some people, including members of Congress, argue widespread collection of electronic data is needed because of terrorist cells’ access to technology, Lieu told The Argonaut he believes the program goes too far.
“If we lived in a totalitarian society, there’s no doubt that we would be much safer. But life would also be a lot more miserable,” Lieu said. “I agree that we live in a dangerous world, but that’s why we have the Bill of Rights. The founders understood how dangerous an out-of-control government could be.”
Erwin Chemirinsky, a critic of domestic spying and dean of the University of California at Irvine Law School, said Lieu’s bill is likely itself unconstitutional because a state law cannot supersede a federal statue. “California cannot stop it or interfere with it since it is a federal program. It is no different from a state saying it would not help the federal government carry out an order to desegregate schools,” Chemirinsky, who could not be reached, told the Daily Breeze.
Lieu, who has a law degree from Georgetown University, also said he was not concerned about potential legal challenges to a state law that conflicts with federal mandates. He cited the TRUST Act, signed Oct. 5 by Gov. Jerry Brown, which prevents police from transferring undocumented immigrants who have been arrested for non-violent crimes to federal immigration authorities for deportation.
“State-funded public resources should not be going toward aiding the NSA or any other federal agency from indiscriminate spying on its own citizens and gathering electronic or metadata that violates the Fourth Amendment,” Lieu said.
Karl Manheim, a Loyola Marymount University law professor who specializes in constitutional law, said passage of Lieu’s bill may force the courts to address the federal program.
“A federal law must be constitutional in order to preempt a state law. [State laws] cannot be displaced by unconstitutional laws,” Manheim said. “Sometimes legislation can serve an educational purpose as well as a public policy purpose. If the federal government were to bring a lawsuit [to force California to cooperate with federal authorities], the law could be very instructional in its examination of the program.”
Recent federal court rulings on government collection of electronic data have gone both ways on the issue. In December, U.S. District Judge William H. Pauley III said NSA operations in New York were an effective “counterpunch” to combating terrorism when he rejected an American Civil Liberties Union lawsuit. But also that month, U.S. District Judge Richard Leon ruled in a Washington D.C. case that the security agency’s phone surveillance program was “almost Orwellian” and possibly in violation of Fourth Amendment.
Manheim, who views the federal domestic surveillance program as “suspect,” said he wasn’t surprised at the conflicting rulings due to the vastness and complexity of the program.
Lieu said news reports about the extent of the program made his choice an easy one.
“I really found those revelations about the federal government’s indiscriminate spying very troubling,” he said.
Lieu expects SB 828 to be heard in a Senate committee next month.