Submitted by Darren Smith, Guest Contributor
The Washington State House of Representatives have crafted House Bill 2272 titled “The Fourth Amendment protection act” with the purported purpose of protecting state citizens from unwarranted collection of data that is provided to various agencies of the United States government without a search warrant. The act includes provisions that allow for a citizen to be arrested for complying with the U.S. government and sanctions local agencies and employees with even harsher penalties. One has to wonder which is a greater threat to individual liberty, the actions of the federal agencies targeted or this potential state law.
What could in fact be an analogue and extension of the U.S. Senate Bill 1037 titled the “Fourth Amendment Preservation and Protection Act of 2013”, the text of which can be found HERE the Washington State bill provides criminal sanctions and penalties against others who comply with federal demands for information or assistance for providing this information without a search warrant.
The federal bill provides essentially the federal or state governments may not collect personal information without express informed consent of the person identified or through a search warrant. It reads, in pertinent part:
In General.–Except as provided in subsection (b), the Federal Government and a State or local government is prohibited from obtaining or seeking to obtain information relating to an individual or group of individuals held by a third-party in a system of records, and no such information shall be admissible in a criminal prosecution in a court of law.
Section (b) refers to the informed consent and search warrant requirements.
The Washington House Bill goes far beyond this restriction on the federal and state governments and includes everyone else. The policy statement declares:
It is the policy of this state to refuse material support, participation, or assistance to any federal agency which claims the power, or with any federal law, rule, regulation, or order which purports to authorize, the collection of electronic data or metadata of any person pursuant to any action not based on a warrant that particularly describes the person, place, and thing to be searched or seized.
Beyond this the bill limits providing material support to any federal agency that engages in practices the State of Washington would consider unlawful, such as:
- Utilize any assets, state funds, or funds allocated by the state to local entities;
- Provide services, or participate or assist in any way with the providing of services;
- Use any information in a criminal investigation or prosecution.
The punishment section of the bill includes the following provisions, in pertinent part:
- A political subdivision of this state may not receive state grant funds if the political subdivision adopts a rule, order, ordinance, or policy under which the political subdivision violates section 3 of this act;
- Any agent or employee of this state or of any political subdivision of this state who knowingly violates the prohibitions in section 3 of this act is deemed to have resigned any commission from the state of Washington which he or she may possess, his or her office is deemed vacant and he or she is forever ineligible to any office of trust, honor, or emolument under the laws of this state;
- Any corporation or person that provides services to or on behalf of this state and violates the prohibitions of section 3 of this act is forever ineligible to act on behalf of, or provide services to, this state or any political subdivision of this state;
- Any officer, employee, or agent, of this state or of any political subdivision of this state who knowingly violates the prohibitions in section 3 of this act is guilty of a gross misdemeanor;
- Any corporation or person providing services to or on behalf of this state knowing that the provision violates the prohibitions in section 3 of this act is guilty of a misdemeanor.
The sanctioned services provided can essentially mean anything. If a state entity, such as the University of Washington, which does provide research to the NSA and other federal government agencies could, under this bill, lose all their state funding for providing research as innocuous as social sciences, electronic research relating to power cells, or even medical consultation services for government employees. Plus, it would go as far as to punish public utilities for providing electricity or water, and even construction contractors and their employees constructing facilities for these government agencies. An electronics supplier of gadgets would also be subject to sanction. Moreover they would be banned from ever receiving a contract to engage in state bids for contracts.
Individuals who reside in the state who are employees of these agencies or independent contractors are subject to arrest as are employees of local agencies, who are punished greater, simply for performing the duties of their jobs. Elected officials are automatically forced out of office and banned from being elected to office in the future.
There is also a civil action paragraph to recover damages.
Here is a similar blue law on the books in Washington:
Under Chapter 9.81 RCW (Subversive Activities) a law originating from 1951, those persons being a member of what the state considers to be a Subversive Organization, the only one listed in law is the Communist Party, are ineligible for holding public office, employment, or voting and they are subject to being arrested for a felony. Now, under 2272, anyone assisting a federal agency the state law considers to be engaged in violating the Fourth Amendment, they are treated in a similar manner.
Often times beyond just providing material support individual citizens are now the ones restrained by the Fourth Amendment not just governments or government agents. Citizens are subject to arrest with no qualified immunity that law enforcement officers can be protected by. Simply by obeying federal law, federal agency, or mandate puts individuals in jeopardy of arrest by state operatives.
Aside from the violations against what the legislative intent aims at the NSA, virtually any federal agency that keeps electronic records is subject to inclusion. This would include the U.S. Census Bureau, the National Crime Information Center (NCIC) department of Social and Health Services, etc. So could census workers, police records clerks, and DSHS employees be subjected to arrest?
The federal bill aforementioned essentially only prohibits government agencies from collecting data without informed consent or a search warrant. The state bill punishes everyone for ordinary commerce and compliance with federal mandates. Citizens would have to choose between being out of federal compliance or risk arrest.
Other states are considering legislation in some form of a similar nature. Is it really about constitutional rights or about theatrics in a showdown with the federal government?
So one has to wonder how the Washington Legislature can protect the constitutional rights of state citizens, by kicking people out of office, banning people from employment or contracting, and subjecting citizens to arrest.
What do you think?
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