A Constitutional Strategy to Stop NSA Spying

The National Security Agency looks at literally millions of phone records.  It captures millions of e-mails.  It sifts through millions of megabytes of private data.

And it does this all without following the requirements of the Fourth Amendment.

It can be stopped.  How that can be done in a moment -- but first, a closer look at current strategies and roadblocks.

Defending Itself

In a recent press release, one spokesperson went so far as to call criticism of the NSA a "disservice to the nation."

NSA conducts all of its activities in accordance with applicable laws, regulations, and policies - and assertions to the contrary do a grave disservice to the nation, its allies and partners, and the men and women who make up the National Security Agency.

It shouldn't be any surprise that the NSA would claim that it operates legally.  No agency is likely to do otherwise.  More importantly, though, under the Constitution, executive agencies don't get to determine the lawfulness of their own operations.

Thomas Jefferson put it this way:

The government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers.

Not Gonna Happen

Many Americans consider the actions of the NSA to be unconstitutional but feel helpless to stop it.  Here are a few problems.

  1. The NSA has absolutely no intention of stopping what it's doing.  None.
  2. Congress is either happy about this or too weak to do anything about it.
  3. A federal court system that doesn't seem to have an issue with a "tax" on inactivity is not likely to have a problem with these actions, either.

Some members of Congress on both sides of the aisle have introduced bills in an effort to bring the NSA under control. 

But with Dianne Feinstein holding the gavel as chair of the Senate Intelligence Committee, it's not likely that any of them will ever become law.

A hard truth: waiting for federal employees to stop the federal spy machine is a fool's game.  

Another Option?

In The Art of War, Sun Tzu advised this strategy: "Attack him where he is unprepared, appear where you are not expected."

The NSA is absolutely expecting opponents to "attack" its actions via the same actors they always use: Congress and the courts.  And the NSA has a strong defense in place.

The people at the NSA have got the chair of the Senate Intelligence Committee on their side.  They can point to Executive Order 12333 as another "authorization" to do the spying that they want in case the unthinkable happens and Congress repeals parts or all of the PATRIOT Act or FISA.  And federal judges almost always allow for expansive federal power when "national security" is used as the justification.  That's how federal "indefinite detention" powers remain law today.

In other words, no matter what is done through the conventional channels, NSA spying is going to continue.

On the other hand, taking Sun Tzu's advice could be very effective.

Achilles Heel

There is, in fact, another point Americans can target to push back against the NSA.  The agency actually has an Achilles heel: resources.

In 2006, it was reported that the NSA had maxed out capacity of the Baltimore-area power grid.

The NSA is already unable to install some costly and sophisticated new equipment. At minimum, the problem could produce disruptions leading to outages and power surges.

At worst, it could force a virtual shutdown of the agency.

To get around the physical limitation of the amount of power required to monitor communication around the globe, the NSA started searching for new locations with independent resources.  .

The NSA chose the new Utah Data Center due to the access to cheap utilities, primarily water.  The water-cooled supercomputers there require 1.7 million gallons per day to function.  That water is being supplied by a political subdivision of the State of Utah.  And they can actually turn it off.

No water = no NSA data center.

The situation is the same at many other locations around the country (there are at least 10) -- for example, Texas.  The NSA chose the new data center in San Antonio not only for its proximity to a new Microsoft data center, but because of the Texas power grid -- providing electricity independently from the rest of the country. 

That electricity is coming from a political subdivision of the State of Texas.  They can turn it off, too. 

No electricity = no NSA data center.

Legal Principle

The strategy rests on what is known as the "anti-commandeering doctrine."

This is the principle that nothing in the Constitution requires states to help the federal government violate your rights.

In fact, Supreme Court opinion has backed this up in four significant cases going back to 1842.  They are:

  • Prigg (1842): The Court held that states weren't required to enforce federal slavery laws.
  • New York (1992): The Court held that Congress couldn't require states to enact specified waste disposal regulations.
  • Printz (1997): The Court held that "the Federal Government may not compel the States to enact or administer a federal regulatory program."
  • Sebelius (2012): The Court held that states couldn't be required to expand Medicaid even under the threat of losing federal funding.

These judicial opinions are consistent with the blueprint for state-level action that James Madison gave us in Federalist #46.  Among the four steps he advised as "powerful means" to oppose federal power was a "refusal to cooperate with officers of the Union."

Action Items

Denying the NSA necessary cooperation from state and local agencies is a constitutionally valid strategy.

Armed with that knowledge, there are a number of steps you should be taking in your state right now.

  1. Legislation: Get a copy of the state-level 4th Amendment Protection Act here.
  2. Learn more about the legislation here
  3. Contact your state senator and representative today.  Strongly, but respectfully, encourage them to introduce the act in your State.  (Tip: a phone call will have far more impact than an e-mail.)  Contact info here.  
  4. Getg updates on the effort nationally and in your state here.

Pushing back against the NSA won't be easy.  But Americans cannot sit idly by and watch an agency that is supposed to defend them shred the very fabric it was woven out of.

"Instead of sitting down satisfied with the efforts we have already made, which is the wish of our enemies, the necessity of the times, more than ever, calls for our utmost circumspection, deliberation, fortitude, and perseverance." -Samuel Adams

The National Security Agency looks at literally millions of phone records.  It captures millions of e-mails.  It sifts through millions of megabytes of private data.

And it does this all without following the requirements of the Fourth Amendment.

It can be stopped.  How that can be done in a moment -- but first, a closer look at current strategies and roadblocks.

Defending Itself

In a recent press release, one spokesperson went so far as to call criticism of the NSA a "disservice to the nation."

NSA conducts all of its activities in accordance with applicable laws, regulations, and policies - and assertions to the contrary do a grave disservice to the nation, its allies and partners, and the men and women who make up the National Security Agency.

It shouldn't be any surprise that the NSA would claim that it operates legally.  No agency is likely to do otherwise.  More importantly, though, under the Constitution, executive agencies don't get to determine the lawfulness of their own operations.

Thomas Jefferson put it this way:

The government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers.

Not Gonna Happen

Many Americans consider the actions of the NSA to be unconstitutional but feel helpless to stop it.  Here are a few problems.

  1. The NSA has absolutely no intention of stopping what it's doing.  None.
  2. Congress is either happy about this or too weak to do anything about it.
  3. A federal court system that doesn't seem to have an issue with a "tax" on inactivity is not likely to have a problem with these actions, either.

Some members of Congress on both sides of the aisle have introduced bills in an effort to bring the NSA under control. 

But with Dianne Feinstein holding the gavel as chair of the Senate Intelligence Committee, it's not likely that any of them will ever become law.

A hard truth: waiting for federal employees to stop the federal spy machine is a fool's game.  

Another Option?

In The Art of War, Sun Tzu advised this strategy: "Attack him where he is unprepared, appear where you are not expected."

The NSA is absolutely expecting opponents to "attack" its actions via the same actors they always use: Congress and the courts.  And the NSA has a strong defense in place.

The people at the NSA have got the chair of the Senate Intelligence Committee on their side.  They can point to Executive Order 12333 as another "authorization" to do the spying that they want in case the unthinkable happens and Congress repeals parts or all of the PATRIOT Act or FISA.  And federal judges almost always allow for expansive federal power when "national security" is used as the justification.  That's how federal "indefinite detention" powers remain law today.

In other words, no matter what is done through the conventional channels, NSA spying is going to continue.

On the other hand, taking Sun Tzu's advice could be very effective.

Achilles Heel

There is, in fact, another point Americans can target to push back against the NSA.  The agency actually has an Achilles heel: resources.

In 2006, it was reported that the NSA had maxed out capacity of the Baltimore-area power grid.

The NSA is already unable to install some costly and sophisticated new equipment. At minimum, the problem could produce disruptions leading to outages and power surges.

At worst, it could force a virtual shutdown of the agency.

To get around the physical limitation of the amount of power required to monitor communication around the globe, the NSA started searching for new locations with independent resources.  .

The NSA chose the new Utah Data Center due to the access to cheap utilities, primarily water.  The water-cooled supercomputers there require 1.7 million gallons per day to function.  That water is being supplied by a political subdivision of the State of Utah.  And they can actually turn it off.

No water = no NSA data center.

The situation is the same at many other locations around the country (there are at least 10) -- for example, Texas.  The NSA chose the new data center in San Antonio not only for its proximity to a new Microsoft data center, but because of the Texas power grid -- providing electricity independently from the rest of the country. 

That electricity is coming from a political subdivision of the State of Texas.  They can turn it off, too. 

No electricity = no NSA data center.

Legal Principle

The strategy rests on what is known as the "anti-commandeering doctrine."

This is the principle that nothing in the Constitution requires states to help the federal government violate your rights.

In fact, Supreme Court opinion has backed this up in four significant cases going back to 1842.  They are:

  • Prigg (1842): The Court held that states weren't required to enforce federal slavery laws.
  • New York (1992): The Court held that Congress couldn't require states to enact specified waste disposal regulations.
  • Printz (1997): The Court held that "the Federal Government may not compel the States to enact or administer a federal regulatory program."
  • Sebelius (2012): The Court held that states couldn't be required to expand Medicaid even under the threat of losing federal funding.

These judicial opinions are consistent with the blueprint for state-level action that James Madison gave us in Federalist #46.  Among the four steps he advised as "powerful means" to oppose federal power was a "refusal to cooperate with officers of the Union."

Action Items

Denying the NSA necessary cooperation from state and local agencies is a constitutionally valid strategy.

Armed with that knowledge, there are a number of steps you should be taking in your state right now.

  1. Legislation: Get a copy of the state-level 4th Amendment Protection Act here.
  2. Learn more about the legislation here
  3. Contact your state senator and representative today.  Strongly, but respectfully, encourage them to introduce the act in your State.  (Tip: a phone call will have far more impact than an e-mail.)  Contact info here.  
  4. Getg updates on the effort nationally and in your state here.

Pushing back against the NSA won't be easy.  But Americans cannot sit idly by and watch an agency that is supposed to defend them shred the very fabric it was woven out of.

"Instead of sitting down satisfied with the efforts we have already made, which is the wish of our enemies, the necessity of the times, more than ever, calls for our utmost circumspection, deliberation, fortitude, and perseverance." -Samuel Adams