recommended reading

States Join Effort to Rein in NSA Surveillance

An aerial view of the NSA's Utah Data Center in Bluffdale, Utah.

An aerial view of the NSA's Utah Data Center in Bluffdale, Utah. // Rick Bowmer/AP

If you are worried about your privacy and remain unconvinced that President Obama will offer any serious reforms to the National Security Agency, take heart: Legislators in statehouses around the country are seeking to take the battle over government surveillance into their own hands.

The OffNow coalition, a group of organizations with a libertarian bent, are taking a page out of the American Legislative Exchange Council's notebook and offering up model legislation to state lawmakers in an attempt to disrupt the NSA.

"As we began to look at it, we started to realize that the federal government, as with most things, is not going to limit itself," said Michael Maharrey, spokesman for the Tenth Amendment Center, an OffNow member. Citing the writings of Thomas Jefferson and James Madison, Maharrey contends that the idea of states waging war on the NSA "is on very strong legal footing."

Earlier this week, a bipartisan duo of California state senators dropped legislation that would prevent the state from aiding the NSA's collection of phone and Internet metadata on grounds it is a "direct threat to our liberty and freedom." On the same day, a lawmaker in Oklahoma introduced a similar bill. Both measures features four cornerstones: They would prohibit state and local agencies from helping the NSA within their jurisdiction, including state-owned public utilities; make warrantless data gathered inadmissible in state court; bar public universities from contributing to NSA research or recruitment; and issue sanctions against contractors that work with the NSA.

Arizona has also introduced the full slate of proposed reforms, according to Maharrey. Missouri and Kansas have introduced pared-down measures. Legislators in Washington, Utah, and a few other states are mulling over the model legislation as well, Maharrey said.

They've already made strides in a handful of states despite uncertainty that what they're trying to do would be constitutional. While Maharrey and others believe the have a solid case, legal experts aren't so sure.

"If this becomes a real battle, the federal government wins, because the federal government always wins," said Jeremy Rabkin, a constitutional law professor at George Mason University.

He added that he was "extremely skeptical" of the measures being pushed by OffNow, though added that the sections dealing with state courts and universities could have some merit.

But while states can't trump federal law, they don't have to make things easy for the feds.

"State governments are free to refrain from cooperating with federal authorities if they so choose," explained Randy Barnett, a professor at Georgetown's Law Center. "In general, states cannot attack federal operations, but that's not the same as refusing to help."

Barnett pointed to the more than two dozen states that refused to implement their own online health exchanges under the Affordable Care Act, leaving the task up to the feds instead, as a recent example of how states can decide to be willfully unhelpful even if they can't block a federal program.

Barnett further noted that even if the states did have legal authority to pull the plug or turn off the water on the NSA, it's unlikely they'd really want to. States like Maryland and Utah, which house NSA facilities, aren't going to try to shut them down because of the huge economic boon they provide to the states.

Maharrey and others recognize the legal hurdles they face, but they remain undeterred.

"Obviously, the NSA is going to have other options," Maharrey conceded. "But an organization that is spying on virtually everyone in the world should have life made as difficult as possible for them."

This article appears in the January 10, 2014, edition of NJ Daily.

Threatwatch Alert

Thousands of cyber attacks occur each day

See the latest threats


Close [ x ] More from Nextgov

Thank you for subscribing to newsletters from
We think these reports might interest you:

  • Data-Centric Security vs. Database-Level Security

    Database-level encryption had its origins in the 1990s and early 2000s in response to very basic risks which largely revolved around the theft of servers, backup tapes and other physical-layer assets. As noted in Verizon’s 2014, Data Breach Investigations Report (DBIR)1, threats today are far more advanced and dangerous.

  • Featured Content from RSA Conference: Dissed by NIST

    Learn more about the latest draft of the U.S. National Institute of Standards and Technology guidance document on authentication and lifecycle management.

  • PIV- I And Multifactor Authentication: The Best Defense for Federal Government Contractors

    This white paper explores NIST SP 800-171 and why compliance is critical to federal government contractors, especially those that work with the Department of Defense, as well as how leveraging PIV-I credentialing with multifactor authentication can be used as a defense against cyberattacks

  • Toward A More Innovative Government

    This research study aims to understand how state and local leaders regard their agency’s innovation efforts and what they are doing to overcome the challenges they face in successfully implementing these efforts.

  • From Volume to Value: UK’s NHS Digital Provides U.S. Healthcare Agencies A Roadmap For Value-Based Payment Models

    The U.S. healthcare industry is rapidly moving away from traditional fee-for-service models and towards value-based purchasing that reimburses physicians for quality of care in place of frequency of care.

  • GBC Flash Poll: Is Your Agency Safe?

    Federal leaders weigh in on the state of information security


When you download a report, your information may be shared with the underwriters of that document.