Fourth Amendment Protection Act
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The Fourth Amendment Protection Acts, are a collection of state legislation aimed at withdrawing state support for bulk data (metadata) collection and ban the use of warrant-less data in state courts. They are proposed
nullification Nullification may refer to: * Nullification (U.S. Constitution), a legal theory that a state has the right to nullify any federal law deemed unconstitutional with respect to the United States Constitution * Nullification Crisis, the 1832 confront ...
laws that, if enacted as law, would prohibit the state governments from co-operating with the
National Security Agency The National Security Agency (NSA) is a national-level intelligence agency of the United States Department of Defense, under the authority of the Director of National Intelligence (DNI). The NSA is responsible for global monitoring, collecti ...
, whose
mass surveillance Mass surveillance is the intricate surveillance of an entire or a substantial fraction of a population in order to monitor that group of citizens. The surveillance is often carried out by local and federal governments or governmental organizati ...
efforts are seen as unconstitutional by the proposals' proponents. Specific examples include the Kansas Fourth Amendment Preservation and Protection Act and the
Arizona Fourth Amendment Protection Act The Arizona Fourth Amendment Protection Act is a bill proposed in the Arizona legislature that would withdraw state support for collection of metadata and ban the use of warrantless data in courts. The bill was introduced into the Arizona Senat ...
. The original proposals were made in 2013 and 2014 by legislators in the American states of
Utah Utah ( , ) is a state in the Mountain West subregion of the Western United States. Utah is a landlocked U.S. state bordered to its east by Colorado, to its northeast by Wyoming, to its north by Idaho, to its south by Arizona, and to it ...
,
Washington Washington commonly refers to: * Washington (state), United States * Washington, D.C., the capital of the United States ** A metonym for the federal government of the United States ** Washington metropolitan area, the metropolitan area centered o ...
,
Arizona Arizona ( ; nv, Hoozdo Hahoodzo ; ood, Alĭ ṣonak ) is a state in the Southwestern United States. It is the 6th largest and the 14th most populous of the 50 states. Its capital and largest city is Phoenix. Arizona is part of the Fou ...
,
Kansas Kansas () is a state in the Midwestern United States. Its capital is Topeka, and its largest city is Wichita. Kansas is a landlocked state bordered by Nebraska to the north; Missouri to the east; Oklahoma to the south; and Colorado to the ...
,
Missouri Missouri is a U.S. state, state in the Midwestern United States, Midwestern region of the United States. Ranking List of U.S. states and territories by area, 21st in land area, it is bordered by eight states (tied for the most with Tennessee ...
,
Oklahoma Oklahoma (; Choctaw language, Choctaw: ; chr, ᎣᎧᎳᎰᎹ, ''Okalahoma'' ) is a U.S. state, state in the South Central United States, South Central region of the United States, bordered by Texas on the south and west, Kansas on the nor ...
and
California California is a U.S. state, state in the Western United States, located along the West Coast of the United States, Pacific Coast. With nearly 39.2million residents across a total area of approximately , it is the List of states and territori ...
. Some of the bills would require a warrant before information could be released, whereas others would forbid state universities from doing NSA research or hosting NSA recruiters, or prevent the provision of services such as water to NSA facilities.


History

The events of the 9/11 terrorist attacks led to some sweeping changes in national security policies. Through the enactment of Title II: Enhanced Surveillance Procedures of the USA PATRIOT Act of 2001, many government agencies were granted increased power of surveillance. Controversy arose from the increased surveillance that was granted. Proponents of the act argued that the increased surveillance measures were necessary for the protection and safety of the country, while detractors argued that the increased power of surveillance infringed upon Fourth Amendment protections. Among the controversial programs that were put into place was the
President's Surveillance Program The President's Surveillance Program (PSP) is a collection of secret intelligence activities authorized by the President of the United States George W. Bush after the September 11 attacks in 2001 as part of the War on Terrorism. Information coll ...
, which embodied the
Terrorist Surveillance Program The Terrorist Surveillance Program was an electronic surveillance program implemented by the National Security Agency (NSA) of the United States in the wake of the September 11, 2001 attacks. It was part of the President's Surveillance Program, ...
. Through this surveillance program, President George W. Bush authorized the
NSA The National Security Agency (NSA) is a national-level intelligence agency of the United States Department of Defense, under the authority of the Director of National Intelligence (DNI). The NSA is responsible for global monitoring, collecti ...
to wiretap international calls where one party was suspected of having affiliations with Al Qaeda. It also reportedly allowed for data mining of emails, internet activity, text messaging and telephone call records, stored in a NSA call database. The Terrorist Surveillance Program became publicly known after several NSA whistleblowers, William E. Binney, Ed Loomis,
Thomas A. Drake Thomas Andrews Drake (born 1957) is a former senior executive of the National Security Agency (NSA), a decorated United States Air Force and United States Navy veteran, and a whistleblower. In 2010, the government alleged that Drake mishandled doc ...
and J. Kirk Wiebe, came forward with information about the agency's database collection program,
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, which eliminated the privacy protections for U.S. citizens that its predecessor, the ThinThread Project, promised. The information presented by Binney, Loomis, Drake and Wiebe brought the controversial practices of the NSA to the public eye, further inciting the controversy around the increased power that government agencies were granted. Information continued to come forward through many national news sources over the next several years about continuation of data collection programs carried out by government agencies. In 2013, former NSA whistle-blower,
Edward Snowden Edward Joseph Snowden (born June 21, 1983) is an American and naturalized Russian former computer intelligence consultant who leaked highly classified information from the National Security Agency (NSA) in 2013, when he was an employee and su ...
, came forward with information about continued surveillance on US Citizens through the
PRISM Prism usually refers to: * Prism (optics), a transparent optical component with flat surfaces that refract light * Prism (geometry), a kind of polyhedron Prism may also refer to: Science and mathematics * Prism (geology), a type of sedimentary ...
surveillance project, that allowed the NSA to collect communications from providers like
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.,
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and
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among others. Collected data was stored in the NSA database
Boundless Informant Boundless Informant (stylized as BOUNDLESSINFORMANT) is a big data analysis and data visualization tool used by the United States National Security Agency (NSA). It gives NSA managers summaries of the NSA's worldwide data collection activities by ...
and collected through the NSA Analytical tool
XKeyscore XKeyscore (XKEYSCORE or XKS) is a secret computer system used by the United States National Security Agency (NSA) for searching and analyzing global Internet data, which it collects in real time. The NSA has shared XKeyscore with other intellige ...
, which allowed for the collection of most any form of data, from emails, to social media, and web browsing history. Snowden's revelations and released documents detailed that the NSA's data collection programs were much broader, deeper, and insidious than previously released information had shown, and included collection of data even from users of
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,
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and
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, as well as NSA agents spying on their own love interests. In 2014, former U.S. State Department whistle-blower, John Tye, wrote an opinion piece in the ''Washington Post'', outlining his concerns over data collection under Executive Order 12333. Part 2.3 (i) allows that "incidentally obtained information that may indicate involvement in activities that may violate federal, state, local or foreign laws" may be collected, retained and disseminated. In light of all of the information that came out over the previous 12–13 years, many states began invoking their Tenth Amendment rights to propose and enact Fourth Amendment Protection Acts in order to stop NSA collection within those states, or to disallow any unconstitutionally collected data to be utilized in state courts. Some states proposed actions to stop NSA Centers from accessing state controlled utilities, such as water and electricity, in an effort to block NSA data collections from within the state.


Fourth Amendment Protection Act By State


California

On January 6, 2014, the state of California proposed Senate Bill 828 (2013–14). It was introduced by senators
Ted Lieu Ted W. Lieu (; born March 29, 1969) is an American politician and Air Force Reserve Command colonel who has represented California's 33rd congressional district in the U.S. House of Representatives since 2015. The district includes much of wes ...
and
Joel Anderson Joel Anderson (born February 11, 1960) is an American politician serving as a member of the San Diego County Board of Supervisors. A Republican, he is a former California state senator, assemblyperson, and board member of a municipal water di ...
, with the intention of adding Chapter 32.5 (commencing with Section 7599) to the state government's code. Its intention aimed to prohibit providing any resources, participation, or aid of any sort to requests made by federal agencies that attempt to collect metadata by means in which the state finds illegal. Furthermore, it would prohibit agencies such as the NSA from using public universities as recruitment centers, as well as prohibiting such agencies from performing research on campus grounds. On November 30, 2014, it was approved by the governor and was accepted into California State law.


Washington

In the state of Washington, multiple bills have been proposed in order to offer protections from certain NSA data collection operations. Specifically, those conducted without warrants. In 2017, House Bill 1193 (2017-18) was introduced, and given its first reading on January 13. Its primary intention was to prevent the use of data and online information obtained without a proper warrant from being used as evidence against individuals being prosecuted in a court of law. It would also prohibit the utilization of state resources and services for data collection operations that the state deems unconstitutional. In addition, any persons or corporations found to have been providing services to federal agencies for unconstitutional purposes would be guilty of misdemeanors. As of 2018, the bill remains in committee. An earlier version of the bill was proposed in 2013 as House Bill 2272.


Arizona

Similar to California's Fourth Amendment Protection Act, Arizona State had also proposed their own protections under Senate Bill 1156 (2014). It was supported by many members of the Senate, including its president at the time,
Andy Biggs Andrew Steven Biggs (born November 7, 1958) is an American attorney and politician who represents in the United States House of Representatives. The district, which was once represented by U.S. Senators, John McCain and Jeff Flake, is in the ...
. In Arizona, it would have prevented digital information obtained without a warrant from being used in court, prohibited federal agencies from using state funding to carry out data collection without proper warrants, and eliminated numerous gray areas not mentioned in the Fourth Amendment. It was intended to go into effect on January 1, 2015. However, this bill did not pass.


Federal Level

On June 2, 2015, President
Barack Obama Barack Hussein Obama II ( ; born August 4, 1961) is an American politician who served as the 44th president of the United States from 2009 to 2017. A member of the Democratic Party, Obama was the first African-American president of the U ...
signed a revised version of the
USA Freedom Act The USA Freedom Act (, ) is a U.S. law enacted on June 2, 2015, that restored and modified several provisions of the Patriot Act, which had expired the day before. The act imposes some new limits on the bulk collection of telecommunication metada ...
. Under Section 215 the mass collection of phone data was no longer allowed. Phone records could now only be obtained through the Federal Courts. Companies also now had the ability to publicly report the number of records requests they had received, making it even harder for massive amounts of information to be requested. This was the first time such protections were added for citizens since the attacks on
September 11, 2001 The September 11 attacks, commonly known as 9/11, were four coordinated suicide terrorist attacks carried out by al-Qaeda against the United States on Tuesday, September 11, 2001. That morning, nineteen terrorists hijacked four commerc ...
. Many Americans had concerns after Snowden's information leaks, causing data privacy and security concerns to become much larger and widely discussed issues. Still, others in government, such as Senate Leader
Mitch McConnell Addison Mitchell McConnell III (born February 20, 1942) is an American politician and retired attorney serving as the senior United States senator from Kentucky and the Senate minority leader since 2021. Currently in his seventh term, McConne ...
, were pushing for more terrorism protections and would realize that this bill, while losing some ground on their end, was still their best chance, as protections granted from the previous bill had already expired. Even as the Government was adding privacy protections, the advancements in technology were making surveillance practices easier. Devices such as satellites, cell phones, smart cars, smart-grid power reading, smart televisions, drones and automatic license place readers, to name a few, were becoming more and more prevalent in the surveillance world and the ways that information is gathered. New technology such as stingray surveillance technology is now used to create a more prominent signal for devices to gain connectivity to the internet, or cell phone towers, which, in turn, grants access to the information stored on connected devices. These types of devices have been used by many law enforcement agencies, growing the public's concern, and need for more privacy protection laws. Two large technology companies,
Microsoft Microsoft Corporation is an American multinational technology corporation producing computer software, consumer electronics, personal computers, and related services headquartered at the Microsoft Redmond campus located in Redmond, Washing ...
and
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, were involved in litigation with the US Government in 2016 on the basis of protecting the privacy of their consumers. In February 2016
Bill Gates William Henry Gates III (born October 28, 1955) is an American business magnate and philanthropist. He is a co-founder of Microsoft, along with his late childhood friend Paul Allen. During his career at Microsoft, Gates held the positions ...
, co-founder of Microsoft, filed a lawsuit against the US Government for breaking the
US Constitution The Constitution of the United States is the supreme law of the United States of America. It superseded the Articles of Confederation, the nation's first constitution, in 1789. Originally comprising seven articles, it delineates the nation ...
by not allowing Microsoft to "inform their customers when federal agencies sought their information." Apple was involved in court proceedings in relations to a cell phone connected to a mass shooting in December 2015. The
FBI The Federal Bureau of Investigation (FBI) is the domestic Intelligence agency, intelligence and Security agency, security service of the United States and its principal Federal law enforcement in the United States, federal law enforcement age ...
was requesting that they unlock an encrypted cell phone so that they could gain access to the phone. This would have required Apple to write new software to bypass the password encryption on the phone.
Apple An apple is an edible fruit produced by an apple tree (''Malus domestica''). Apple fruit tree, trees are agriculture, cultivated worldwide and are the most widely grown species in the genus ''Malus''. The tree originated in Central Asia, wh ...
felt that by doing this for this case, they would be opening this up for future cases, and removing the security of the password on the cell phones.
The Supreme Court A supreme court is the highest court within the hierarchy of courts in most legal jurisdictions. Other descriptions for such courts include court of last resort, apex court, and high (or final) court of appeal. Broadly speaking, the decisions of ...
was involved in another case involving a string of robberies throughout Michigan and Ohio. A self-confessed robber in the case, gave the name and cell phone number of Timothy Carpenter to
FBI The Federal Bureau of Investigation (FBI) is the domestic Intelligence agency, intelligence and Security agency, security service of the United States and its principal Federal law enforcement in the United States, federal law enforcement age ...
agents, stating that he was involved. The FBI was able to use the location records of Timothy's cell phone to place him near the crimes, of which he was later convicted of aiding and abetting. His attorneys had argued that the cell phone records were not legally able to be used as evidence, due to lack of search warrant. However, the court had ruled that the cell phone data was not protected. After appeals, the final ruling was that "the records in this case fall on the unprotected side of the Fourth Amendment."
Chief Justice John Roberts John Glover Roberts Jr. (born January 27, 1955) is an American lawyer and jurist who has served as the 17th chief justice of the United States since 2005. Roberts has authored the majority opinion in several landmark cases, including ''Nat ...
was later quoted as saying, " ..ome of the courts most challenging cases involve applying long held rules created by the courts to quickly developing technology." S. 139 was introduced on January 12, 2017, sponsored by Senator Orrin G. Hatch. The bill will continue
Section 702 The FISA Amendments Act of 2008, also called the FAA and Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008, is an Act of Congress that Rescind or amend something previously adopted, amended the Foreign Intelligence Surveilla ...
of the
Foreign Intelligence Surveillance Act The Foreign Intelligence Surveillance Act of 1978 ("FISA" , ) is a United States federal law that establishes procedures for the physical and electronic surveillance and the collection of "foreign intelligence information" between "foreign po ...
that allows the
NSA The National Security Agency (NSA) is a national-level intelligence agency of the United States Department of Defense, under the authority of the Director of National Intelligence (DNI). The NSA is responsible for global monitoring, collecti ...
and
FBI The Federal Bureau of Investigation (FBI) is the domestic Intelligence agency, intelligence and Security agency, security service of the United States and its principal Federal law enforcement in the United States, federal law enforcement age ...
to further continue warrantless access to personal social media and conversation activities of foreigners to America, that also involves U.S citizens' private communications, for an additional six years. The S. 139 bill has made minor key changes to potentially enhance more effective ways to protect privacy in the United States while still tracking possible terrorist attacks. A few changes will now require the
Foreign Intelligence Surveillance Court The United States Foreign Intelligence Surveillance Court (FISC), also called the FISA Court, is a U.S. federal court established under the Foreign Intelligence Surveillance Act of 1978 (FISA) to oversee requests for surveillance warrants ag ...
to approve specified query procedures every year, as well as have the
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over look the query procedures and practices of the
FBI The Federal Bureau of Investigation (FBI) is the domestic Intelligence agency, intelligence and Security agency, security service of the United States and its principal Federal law enforcement in the United States, federal law enforcement age ...
, and have limited use of
Section 702 The FISA Amendments Act of 2008, also called the FAA and Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008, is an Act of Congress that Rescind or amend something previously adopted, amended the Foreign Intelligence Surveilla ...
to not allow information found to be used against U.S citizens for criminal cases.
Section 702 The FISA Amendments Act of 2008, also called the FAA and Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008, is an Act of Congress that Rescind or amend something previously adopted, amended the Foreign Intelligence Surveilla ...
originally expired on December 31, 2017 but was then continued until January 19, 2018 where the vote ruled in favor of the extension by 256–164.
President Donald Trump Donald John Trump (born June 14, 1946) is an American politician, media personality, and businessman who served as the 45th president of the United States from 2017 to 2021. Trump graduated from the Wharton School of the University of Pe ...
signed to enact S. 139 which became
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No: 115-118 that same day. On November 29, 2017 H.R. 4478 FISA Reauthorization Act of 2017, was introduced, sponsored by Republican Devin Nunes to extend Section 702. Representatives Justin Amish and
Zoe Lofgren Susan Ellen "Zoe" Lofgren ( ; born December 21, 1947) is an American lawyer and politician serving as a U.S. representative from California. A member of the Democratic Party, Lofgren is in her 13th term in Congress, having been first elected in 1 ...
offered the USA Rights Act, pertaining a more balanced scale between security and liberty as this bill protects the 4th amendment along with eliminating the warrantless backdoor searches, that would then require government officials to obtain warrants in order to seize and view American citizens' data when the
NSA The National Security Agency (NSA) is a national-level intelligence agency of the United States Department of Defense, under the authority of the Director of National Intelligence (DNI). The NSA is responsible for global monitoring, collecti ...
and
FBI The Federal Bureau of Investigation (FBI) is the domestic Intelligence agency, intelligence and Security agency, security service of the United States and its principal Federal law enforcement in the United States, federal law enforcement age ...
tack into foreigner activities seeking any relations to terrorism. The bill resulted as a loss by a vote of 183–233.


See also

*
Fourth Amendment to the United States Constitution The Fourth Amendment (Amendment IV) to the United States Constitution is part of the Bill of Rights. It prohibits unreasonable searches and seizures. In addition, it sets requirements for issuing warrants: warrants must be issued by a judge o ...
*
Arizona Fourth Amendment Protection Act The Arizona Fourth Amendment Protection Act is a bill proposed in the Arizona legislature that would withdraw state support for collection of metadata and ban the use of warrantless data in courts. The bill was introduced into the Arizona Senat ...


References

{{reflist Mass surveillance Privacy law in the United States