The New Hampshire Legislature passed a bill on Wednesday that would prohibit all government officials — including federal officials — from obtaining “information contained in a portable electronic device” without a warrant “signed by a judge and based on probable cause” in the state.
The bill, HB1533, creates a direct legal conflict with federal surveillance programs, since it bars federal, state, county and local government agencies, including law enforcement, from obtaining any information about a state resident without a warrant. It will now head to the desk of Gov. Maggie Hassan for signing.
State Rep. John Hikel said that although the bill isn’t perfect, “it’s as good as we could get considering the political climate.”
While Hikel said he is unsure whether Hassan, a Democrat, will sign the legislation, he said “if [Republicans] are in the majority next year — we can change a lot.” However, Hikel also seemed to express concern for his own political career, saying that his support for the legislation resulted in a target being placed on his back.
Mike Maharrey is the communications director for the Tenth Amendment Center, an organization that has created sample legislation and encouraged states to pass legislation making it nearly impossible for the National Security Agency or any other federal agency to operate in a state.
“Including federal agencies in this prohibition on obtaining electronic information without a warrant does two important things,” he explained.
First, Maharrey said, “It will force the federal courts to take a position on the constitutionality of mass federal surveillance programs, since federal statute cannot preempt if it’s not constitutional in the first place.
“It also brings to the forefront that each state does indeed have a role to play in rejecting unconstitutional spying programs, whether they’re state or federal.”
Although Maharrey recognizes that it’s “highly improbable” that the legislation will actually stop federal spying programs from continuing in the state, he said the bill does contain language that will have an immediate and positive impact on the surveillance residents in the state can be subjected to.
For example, while the NSA may be able to continue its warrantless surveillance of New Hampshire residents, the legislation bars state and local law enforcement from using the data collected by the intelligence agency to criminally prosecute residents.
When it comes to curbing the information the federal government can obtain from an individual, the Tenth Amendment Center has advocated for a piece of legislation that has four main provisions. New Hampshire’s legislation includes one of those provisions.
So far, about a dozen states have introduced similar pieces of legislation, while one state, California, has actually enacted a similar law that bars state and local law enforcement from engaging in data sharing — something many argue is a violation of the Fourth Amendment.