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Forget the Feds: States Are Trying to Rein in the NSA

Legislators in statehouses around the country are seeking to take the battle over government surveillance into their own hands. By Dustin Volz

If you are worried about your privacy and remain unconvinced that President Obama will offer any serious reforms to the National Security Agency, take heart: Legislators in statehouses around the country are seeking to take the battle over government surveillance into their own hands.

The OffNow coalition, a group of organizations with a libertarian bend, are taking a page out of the American Legislative Exchange Council's notebook and offering up model legislation to state lawmakers in an attempt to disrupt the NSA.

"As we began to look at it, we started to realize that the federal government, as with most things, is not going to limit itself," said Michael Maharrey, spokesman for the Tenth Amendment Center, an OffNow member. Citing the writings of Thomas Jefferson and James Madison, Maharrey contends that the idea of states waging war on the NSA "is on very strong legal footing."

Earlier this week, a bipartisan duo of California state senators dropped legislation that would prevent the state from aiding the NSA's collection of phone and Internet metadata on grounds it is a "direct threat to our liberty and freedom." On the same day, a lawmaker in Oklahoma introduced a similar bill. Both measures features four cornerstones: They would prohibit state and local agencies from helping the NSA within their jurisdiction, including state-owned public utilities; make warrantless data gathered inadmissible in state court; bar public universities from contributing to NSA research or recruitment; and issue sanctions against contractors that work with the NSA.

(Related: The NSA's Surveillance Programs Aren't Making Us Any Safer)

Arizona has also introduced the full slate of proposed reforms, according to Maharrey. Missouri and Kansas have introduced pared-down measures. Legislators in Washington, Utah, and a few other states are mulling over the model legislation as well, Maharrey said.

They've already made strides in a handful of states despite uncertainty that what they're trying to do would be constitutional. While Maharrey and others believe the have a solid case, legal experts aren't so sure.

"If this becomes a real battle, the federal government wins, because the federal government always wins," said Jeremy Rabkin, a constitutional law professor at George Mason University.

He added that he was "extremely skeptical" of the measures being pushed by OffNow, though added that the sections dealing with state courts and universities could have some merit.

But while states can't trump federal law, they don't have to make things easy for the feds.

"State governments are free to refrain from cooperating with federal authorities if they so choose," explained Randy Barnett, a professor at Georgetown's Law Center. "In general, states cannot attack federal operations, but that's not the same as refusing to help."

Barnett pointed to the more than two dozen states that refused to implement their own online health exchanges under the Affordable Care Act, leaving the task up to the feds instead, as a recent example of how states can decide to be willfully unhelpful even if they can't block a federal program.

Barnett further noted that even if the states did have legal authority to pull the plug or turn off the water on the NSA, it's unlikely they'd really want to. States like Maryland and Utah, which house NSA facilities, aren't going to try to shut them down because of the huge economic boon they provide to the states.

Maharrey and others recognize the legal hurdles they face, but they remain undeterred.

"Obviously, the NSA is going to have other options," Maharrey conceded. "But an organization that is spying on virtually everyone in the world should have life made as difficult as possible for them."