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Tuesday, June 17, 2014

The Fourth Amendment to the Constitution and California Senate Bill SB-828

The 4th Amendment to the United States Constitution says:

“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.”

California Senate Bill SB-828, “The 4th Amendment Protection Act”, proposes to ban any California government institution, political subdivision, or employee of the state acting in an official capacity from supporting any federal agency that “claims the power … to collect electronic data or metadata of any person” in a way that violates the 4th Amendment.

Like any law, this bill has good points and bad points. Section 7599.5(d) bars the use of any such information in a “criminal investigation or prosecution”, even if the information was obtained by a corporation. That currently is not banned, and adding something like that into the law is a good idea — a very good idea.

Unfortunately, the rest of the bill misses the point, and that far outweighs the good part. The bill should be defeated. Here’s why.

First, the authors of the bill object to the gathering and use of “electronic data or metadata” in violation of the 4th Amendment. But there is no objection to non-electronic data or metadata. Why not? It seems to me the threat is not just electronic; it also includes physical data and metadata such as notations in a paper log, or stopping and searching cars without cause. However, the bill doesn’t object to that.

Along those lines, the bill objects to “material support, participation, or assistance” to any federal agency that claims the above-mentioned power. But if a California county, city, or other agency claims the power, the bill is silent about providing material support, participation, and assistance to that agency. This seems hypocritical at best — it’s disallowed if the feds do it, but it’s fine if the state does.

The bill also is aimed at the wrong people — it targets Californians rather than federal agencies (and, presumably, their employees acting on behalf of the agencies). It’s rather like targeting the homeowner because the burglar was able to break into the house and steal things; the target should be the burglar, who committed the crime, and not the homeowner, who may have “materially assisted” the burglar by not properly locking up the house before running to the store. A better approach would be to make the federal agencies involved accountable in some way, or have the agents of that agency arrested for violating the rights of the citizens of California.

Also, the bill is speculative. It focuses on “any federal agency that claims the power to authorize …”. The problem, of course, is that the 4th Amendment is in the Constitution, and therefore any agency “claiming the power” is claiming it is above the law. So if the federal agency does not “claim the power”, do the restrictions in the bill apply? This is important, because I know of no group that claims the power to violate the law with impunity.

If the goal is to disallow the state, its subdivisions, agencies, or its employees from aiding federal agencies in violations of the 4th Amendment, why not just say so directly? It seems to me that language like “to aid a federal agency in the collection of electronic data or metadata …” would achieve this end.

Next, what is “material support, participation, or assistance”? Does supplying power or water to California buildings containing offices of such agencies qualify? How about providing medical transport for injured employees? If the bill said “material support, participation, or assistance to aid a federal agency in the collection of electronic data or metadata …”, then the restriction is clear: if the agency is collecting the electronic data or metadata in violation of the 4th Amendment, they can’t get help doing so from the California government. But the bill doesn’t say that.

Section 7599.5(b) begins: “[u]tilize any assets or public funds, in whole or in part, to engage in any activity that aids a federal agency, federal agent, or corporation while providing services to the federal government …” If I make a telephone call to a federal agency to request a proposed public standard, does my use of a state telephone mean I violate the act? Is that an “activity” that aids them in some unknown way? The vagueness here is frightening.

Similar remarks apply to Section 7599.5(c), which deals with providing services. How generally is the term “services” defined, and exactly when is the provision of services banned? It seems to me that basic life and medical services fall into this category.

And ultimately, the bill does not say who decides whether a “federal agency … claims the power, by virtue of any federal law, rule, regulation, or order, to collect electronic data or metadata of any person” in a way that violates the 4th Amendment. Must the agency announce it? Does a judge decide? The California state legislature? This is critical, because interpretations of what “violates” the 4th Amendment differ. For example, if an agency obtains a warrant, does a search, and later a federal judge tosses the warrant out as violating the 4th Amendment rights of the subject of the search, does that mean those California employees who provided “material support, participation, or assistance in any form”, or used “assets or public funds”, or provided “services” to that federal agency go to jail for violating the law?

I admire and laud the spirit of the bill — violations of people’s right “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures” need to be stopped. But this bill isn’t the way to do it.