The n-Category Café

Yes, this. This is the point that keeps recurring to me too: surveillance methods being used to intimidate and chill free speech and dissent.

Various politicians offer assurances (invariably of the most hand-waving variety) that NSA surveillance is used to counteract terrorism and has helped blocked all sorts of (unspecified) threats. While that sounds like a good thing, it’s extraordinary just how labile the term “terrorist” is, or what can be designated a terrorist organization. For one example, I guess it’s well known that Nelson Mandela was removed from the US terrorist watch list only in 2008 (the ANC of course had been designated a terrorist group by the old apartheid regime in South Africa, and with the US following suit for decades).

Another example that comes to mind, here in the US, is the activist group “Food, Not Bombs”, who mainly distribute free food (e.g. surplus food from bakeries or grocery stores that would otherwise be thrown out) as part of protest against poverty and war. They are leftist in orientation, but emphatically nonviolent. They too have been tarred with the “terrorist” label by FBI officials. Basically, the word “terrorist” can be stretched to mean all kinds of things, to apply to many shades of resistance and dissent. Taken in conjunction with the revelations of the reach of NSA surveillance, this should have worrying implications.

And the fact that border officials have that power has truly worrying implications when applied to people more politically active than me.

That’s a great point. And this power is routinely abused by governments to evade legal and constitutional restrictions on their surveillance powers on politically active people.

Yet there is also a sweet irony in all this. For, if not for the repeated border harassment and detention that American journalist and documentary filmmaker Laura Poitras was subjected to between 2003 and 2010, she would not have gotten involved in the Snowden revelations, and without her extraordinary presence, there is a good case to be made that none of the revelations would have happened. Here is a definitive account of this story; apologies if you have read it already.

The details of how US state law gets made vary a lot from state to state. Typically, it’s a local version of how US federal law gets made: a bill has to be passed by majorities in a two-house state legislature, then signed by the governor. If the governor chooses to veto the bill, the legislature can override with a sufficiently large supermajority. In any case, the process up to the point of the bill becoming state law is entirely internal to the state. So this bill’s chances of becoming law depend on politics in the state of Washington, which I know nothing about, but my guess is that it’s very unlikely to pass.

The next question is, if the law does pass and is implemented, what then? The NSA, or other federal agencies, will certainly claim that it conflicts with some US federal law (I have no idea which federal law, but I’m confident they already have several in mind for such an eventuality), and sue the state of Washington or its agencies in federal court. The general principle (with some caveats) is that federal law trumps state law, so if the courts buy that argument, the state law would probably be struck down. It remains to be seen what the highest courts think of the NSA’s newly-revealed activities, so it’s hard to guess what would happen. Again, my poorly-informed guess is that the law, if it passes, is very unlikely to survive a court challenge.

I imagine that the backers of this bill don’t expect it to pass, and that its proposal is purely symbolic.

Thanks. What you say sounds very plausible (to my uninformed, unAmerican self), even though it’s not what I wanted to hear.

IANAL but I’m American so :   In McCulloch v. Maryland, Chief Justice Marshall wrote “the power to tax involves the power to destroy” when ruling that Maryland could not tax a U.S. Federal Government Bank. I’d similarly imagine our courts would rule against states that withhold essential state services from federal offices.

I’d certainly hope they’d allow states to limit their own evidentiary standards and to prohibit the universities from aiding the NSA though. In fact, it’s unclear if anyone would even challenge those laws in court, maybe all the police and academics would just go along with the law.

We’ve no idea if they ever even pass this law though, maybe not actually, but the effort alone help persuade academics not to support NSA recruiting efforts. Isn’t it shameful that hackers and politicians are more worried about the chilling effects of surveillance than academics?