Arizona lawmaker fights NSA spying
A bill to curb data collection that critics call unconstitutional prompts similar efforts in 11 other states.
TUCSON — Arizona, which has tried to school the federal government in immigration enforcement, again wants to teach the U.S. a lesson.
This time, a junior state lawmaker intends to take on the National Security Agency, which has been under fire for controversial data-collection tactics that include keeping records of every telephone number dialed in the U.S. for five years.
State Sen. Kelli Ward, a tea party Republican who represents the Lake Havasu area, introduced a bill this month intended to limit NSA operations in Arizona.
In December, she became the first legislator in the nation to officially announce that she would offer up a wide-sweeping bill to push back against the NSA. State legislators from across the nation quickly followed suit.
So far, 12 states — from California to Mississippi — have introduced similar bills to make it more difficult for the agency to do surveillance in the United States, according to the Tenth Amendment Center, which provides model legislation to resist NSA surveillance.
The Arizona legislation, SB 1156, would forbid local and state law enforcement officials from cooperating with the NSA and would prevent state or local prosecutors from using NSA information that had not been obtained with a warrant. It would also cut funding to state universities supporting the NSA with research or recruitment.
“Many of my constituents have expressed serious anger about what they’ve learned the NSA is doing,” said Ward, an emergency room physician. “And, personally, I’m not happy about NSA surveillance programs either. I believe it’s my duty to do something here in Arizona to help put a stop to it.”
Her proposal has drawn praise from states’ rights activists and criticism from others who say the bill is unconstitutional — as was most of SB 1070, the tough Arizona immigration law that was largely curbed by the U.S. Supreme Court in 2012.
“Once again, it’s a black mark on Arizona,” state Sen. Steve Gallardo said. “Over the last several years, Arizona has been under a black cloud of legislation that is very unconstitutional and very controversial, and this just plays into that style.”
Gallardo, a Democrat from Phoenix, accused Ward of grandstanding and said that although he considered the NSA’s activities alarming, battling an agency that has done unconstitutional spying with an unconstitutional bill isn’t the way to go.
On Monday, Ward’s bill will go before the Senate Government and Environment Committee.
The bill has 13 other sponsors — all Republicans. But Ward, who describes herself as a constitutionalist, says she’s gotten support from people on both sides of the political divide who “really just want their privacy protected.”
Ward said she didn’t intend for the bill to be just a symbolic gesture. If passed, the bill would:
Prohibit state officials from providing assistance in any form to federal agencies that claim to have the power to gather and store electronic data on any person without a warrant.
Prohibit state and local government entities from providing material support to the NSA.
Make unconstitutionally gathered data inadmissible in state court.
Make corporations doing business with the NSA ineligible for state or local government contracts.
Erwin Chemerinsky, dean of UC Irvine’s School of Law and a constitutional scholar, says courts would almost certainly strike down Ward’s measure because Arizona is in essence trying to regulate the federal government.
Perhaps the only portion that would stand is the provision that declares data gathered by the NSA inadmissible in Arizona court, because that is in the purview of the state, Chemerinsky said.
“The question here is going to be to what extent is the state interfering with the achievement of the federal objective? To what extent is the state regulating the fed- eral government’s activities?” he said. “However well-intentioned it is, most would be preempted by federal law.... The law is clear that states can’t regulate the federal government.”
Michael Boldin, executive director of the Tenth Amendment Center, said he thinks states have a right to regulate what happens within their borders.
“If enough people in enough states say they are not going to participate in this, it will stop them from doing what they are doing,” Boldin said of the NSA. “It’s going to box them in a corner and be more difficult for them to pull things off.”