How to stop the NSA? Start with new bills at each statehouse, activists say

State lawmakers nationwide have decided that they’re not going to wait for Congress to rein in the powers of the National Security Agency and the American surveillance state. Instead, they’ve proposed bills that would limit cooperation by state officials or slow the distribution of state resources. But even legal experts who might want some of these changes admit that states’ abilities to make an end-run around federal law is merely symbolic at best. At worst, it's perhaps illegal.

“This strikes me as bad policy, but irrespective of that, it is plainly unconstitutional under the First Amendment,” said Fred Cate, a law professor at Indiana University. Cate added that while he is “wildly sympathetic with the frustration motivating these bills,” he believes this approach is misguided. For the moment, nearly all the bills that have been proposed or floated appear to come from a group calling itself “Nullify NSA.” The group is organized by the Tenth Amendment Center and the Bill of Rights Defense Committee, both groups that advocate constitutional nullification, the legal theory that an American state can nullify, invalidate, or ignore federal law that it doesn’t like. By Nullify NSA’s own count, 10 states have proposed some version of the “4th Amendment Protection Act.” Those states include Arizona, California, Indiana, Kansas, Mississippi, Missouri, New Hampshire, Oklahoma, Tennessee, and Washington. Nullify NSA noted that a pair of related anti-surveillance bills is set to be voted on by New Hampshire's House Committee on Criminal Justice and Public Safety. If approved, they would be sent to the full state legislature.