Tenth Amendment Center: Florida Senate Approves Bill to Ban Warrantless Stingray Spying, Help Hinder Federal Surveillance

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TALLAHASSEE, Fla. (Mar. 7, 2018) – Today, the Florida Senate approved a measure that would ban warrantless location tracking and the use of stingray devices to sweep up electronic communications in most situations. The new law will not only protect privacy in Florida, but will also hinder one aspect of the federal surveillance state.

Sen. Jeff Brandes (R-St. Petersburg) introduced Senate Bill 1256 (SB1256) on Dec. 14. The legislation would help block the use of cell site simulators, known as “stingrays.” These devices essentially spoof cell phone towers, tricking any device within range into connecting to the stingray instead of the tower, allowing law enforcement to sweep up communications content, as well as locate and track the person in possession of a specific phone or other electronic device.

SB1256 would require police to get a search warrant based on probable cause before acquiring real-time or historical GPS location data, and before using any type of mobile tracking device in most situations. Police already must get a warrant before intercepting cell phone communication content. Adding location tracking to the warrant requirement would effectively end warrantless stingray use in Florida. The legislation would also require police to get a warrant before accessing stored location data from a service provider. Under current law, police can access stored data with a court order.

Last month,, the Senate Rules Committee passed SB1256 by a 13-0. Today, the full senate passed the bill by a vote of 36-0.

The bill does include some exceptions to the warrant requirement. Police could use stingray devices an emergency situation that involves the immediate danger of death or serious injury, the danger of escape of a prisoner, or when specifically defined exigent circumstances exist. In these situations, police would still be required to obtain a warrant within 48 hours.

The contents of any intercepted wire, oral, or electronic communication, or evidence obtained in violation of the law could not be received in evidence or otherwise disclosed in any trial, hearing, or other proceedings.

IMPACT ON FEDERAL SURVEILLANCE PROGRAMS

The federal government funds the vast majority of state and local stingray programs, attaching one important condition. The feds require agencies acquiring the technology to sign non-disclosure agreements. This throws a giant shroud over the program, even preventing judges, prosecutors and defense attorneys from getting information about the use of stingrays in court. The feds actually instruct prosecutors to withdraw evidence if judges or legislators press for information. As the Baltimore Sun reported in April 2015, a Baltimore detective refused to answer questions on the stand during a trial, citing a federal non-disclosure agreement.

Defense attorney Joshua Insley asked Cabreja about the agreement.

“Does this document instruct you to withhold evidence from the state’s attorney and Circuit Court, even upon court order to produce?” he asked.

“Yes,” Cabreja said.

As privacysos.org put it, “The FBI would rather police officers and prosecutors let ‘criminals’ go than face a possible scenario where a defendant brings a Fourth Amendment challenge to warrantless stingray spying.”

The experience of a Pinellas County, Florida, man further highlights the shroud of secrecy around the use of stingray devices, along with the potential for abuse of power inherent in America’s law enforcement community.

The feds sell the technology in the name of “anti-terrorism” efforts. With non-disclosure agreements in place, most police departments refuse to release any information on the use of stingrays. But information obtained from the Tacoma Police Department revealed that it uses the technology primarily for routine criminal investigations.

Some privacy advocates argue that stingray use can never happen within the parameters of the Fourth Amendment because the technology necessarily connects to every electronic device within range, not just the one held by the target. And the information collected by these devices undoubtedly ends up in federal databases.

The feds can share and tap into vast amounts of information gathered at the state and local level through a system known as the “information sharing environment” or ISE. In other words, stingrays create the potential for the federal government to track the movement of millions of Americans with no warrant, no probable cause, and without the people even knowing it.

According to its website, the ISE “provides analysts, operators, and investigators with information needed to enhance national security. These analysts, operators, and investigators…have mission needs to collaborate and share information with each other and with private sector partners and our foreign allies.” In other words, ISE serves as a conduit for the sharing of information gathered without a warrant.

The federal government encourages and funds stingrays at the state and local level across the U.S., thereby undoubtedly gaining access to a massive data pool on Americans without having to expend the resources to collect the information itself. By placing restrictions on stingray use, state and local governments limit the data available that the feds can access.

In a nutshell, without state and local cooperation, the feds have a much more difficult time gathering information. Passage of SB1256 would represent a major blow to the surveillance state and a win for privacy.

Mike Maharrey
March 07, 2018 at 01:57PM

Tenth Amendment Center: New Article: The President is not Violating the Foreign Emoluments Clause

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...from Tenth Amendment Center

After a year of delays,* an article on how the Constitution uses the word “emoluments” has finally appeared. The study indirectly absolves President Trump of claims that he is violating the Constitution by receiving profits from enterprises whose customers include foreign governments.

The article is called The Original Meaning of “Emoluments” in the Constitution, and it was published by Georgia Law Review. It was the result of impartial research: Unlike most articles of the type, it was not designed to serve as a brief for or against a particular political or litigation position.

The article reports that during the Founding Era, the word “emolument” carried several different meanings—some wider, some narrower. The wider meanings included business profits and the narrower meanings did not.  To determine which usage the Constitution adopts, the article examines the text and the surrounding history.

The surrounding history includes proceedings in the Continental and Confederation Congress, how the word “emolument” was used in other important American documents (such as state constitutions), and the debates over the Constitution. Perhaps most importantly, the surrounding history included a massive then-current reform movement in both Britain and America. The reform movement was designed to shift public employee compensation away from certain fees and other fringe benefits and toward fixed salaries. The Constitution’s three anti-emoluments provisions all are typical of such reforms, which targeted almost entirely fees and other fringe benefits, not unrelated profits from outside enterprises.

You can access the article here.

# # # #

* Delays of this kind are associated generally with law reviews (legal journals). The reasons and effects will be topics of a future article.

Rob Natelson
March 07, 2018 at 11:24AM

Tenth Amendment Center: California Bill Would Help Expand Hemp Market, Further Nullify Federal Prohibition in Practice

From Tenth Amendment Center

...from Tenth Amendment Center

SACRAMENTO, Calif. (March 6, 2018) – A bill introduced in the California Senate would loosen some regulations on hemp seed and cultivation. Passage of this bill would pave the way for faster development of the state’s hemp market, and further nullify federal prohibition in practice and effect.

Sen. Scott Wilk (R-Santa Clarita), along with a bipartisan coalition of three cosponsors, introduced Senate Bill 1409 (SB1409) on Feb. 16. The legislation would increase the availability of industrial hemp seed in California by repealing a requirement that seed cultivars must be certified on or before January 1, 2013, in order to be included on the state’s approved seed list. In effect, this will expand the types of hemp seed available to growers.

SB1409 would also simplify the definition of industrial hemp. Under the proposed law, “industrial hemp” would no longer be defined in the California Uniform Controlled Substances Act as “a fiber or oilseed crop.” Instead, the statute would simply read, “Industrial hemp means a crop  that is limited to types of the plant Cannabis sativa L. having no more than three-tenths of 1 percent tetrahydrocannabinol (THC) contained in the dried flowering tops, whether growing or not; the seeds of the plant; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds or resin produced therefrom.”

The bill would delete the requirement that industrial hemp must be grown as a fiber or oilseed crop, or both, and would also delete the requirement that an application for registration must include information about whether a seed cultivar is being grown for its grain or fiber, or as a dual purpose crop. In other words, farmers would be able to grow hemp for any purpose.

Finally, SB1409 would give cities and counties the option of waiving state hemp registration requirements.

Together, these provisions would simplify the law and make it easier for growers to get into hemp and ultimately expand the state’s market.

In particular, seed certification is vital to growing a vibrant hemp industry. A shortage of usable certified seed throws up one of the biggest barriers to hemp research and farming. Few domestic seed sources exist, and the federal government strictly regulates importation and transportation of hemp seeds. By making more types of seed available in the state, SB1409 would open the door to vastly expand the hemp market in California.

FEDERAL FARM BILL

In 2014, Congress cracked the door open for hemp in the U.S. with an amendment to the 2014 Farm Bill. The law allows hemp cultivation for research purposes, but prohibits “commercial” production.

The “hemp amendment” in the 2014 farm bill  —

…allows State Agriculture Departments, colleges and universities to grow hemp, defined as the non-drug oil-seed and fiber varieties of Cannabis, for academic or agricultural research purposes, but it applies only to states where industrial hemp farming is already legal under state law.

In 2016, the U.S. Department of Agriculture and Drug Enforcement Agency released a “statement of principles” to guide interpretation of the hemp section in the Farm Bill. It states, “The growth and cultivation of industrial hemp may only take place in accordance with an agricultural pilot program to study the growth, cultivation, or marketing of industrial hemp established by a State department of agriculture or State agency responsible for agriculture in a State where the production of industrial hemp is otherwise legal under State law.”

In short, the current federal law authorizes farming of hemp – by research institutions, or within state pilot programs – for research only. Farming for commercial purposes by individuals and businesses remains prohibited.

The definition of “commercial” and the extent to which sales and marketing are allowed under the rubric of “research” remains murky. This has created significant confusion.

The statement of principles also asserted that industrial hemp programs are limited to fiber and seed. It didn’t mention the CBD oil or other edible hemp products.The DEA has apparently interpreted that to mean they remain illegal.

Under California law, farmers can ignore federal prohibition and grow hemp commercially anyway. While prospective hemp growers still have to take federal law into consideration, by eliminating the state requirement for federal permission the law clears away a major obstacle to widespread commercial hemp farming within the state’s borders.

Several other states with federally-compliant hemp programs, such as Kentucky, North Dakota, Minnesota and New York, have grown significant acreage under federally-approved research programs. This takes the first step, but with federal shackles in place, these states are not legally allowed to develop any kind of commercial market. Ironically, many of these “federally compliant” programs are not actually federally compliant.

OTHER STATES

Other states, including Colorado, Oregon, Maine and Vermont have simply ignored federal prohibition and legalized industrial hemp production within their state borders.

Colorado was the first state with widespread commercial hemp production. Farmers began growing hemp in southeast Colorado back in 2013 and the industry is beginning to mature. The amount of acreage used to grow industrial hemp in the state doubled in 2016 to nearly 5,000 acres, and nearly doubled again in 2017.

The Oregon legislature initially legalized industrial hemp production in 2009. While it was technically legal to grow hemp in the state, farmers didn’t take advantage of the opportunity for nearly five years. When the Oregon Department of Agriculture finally put a licensing and regulatory program in place early in 2014, farmers began growing hemp. The initial regulatory structure placed significant limits on hemp farming and effectively locked small growers out of the market. In 2016, Gov. Kate Brown signed House Bill 4060 into law. It relaxed state laws regulating hemp already on the books and made the crop more like other agricultural products. Within months, the Oregon Department of Agriculture had already promulgated new rules under the reformed law. According to Oregon’s Cannabis Connection, the rules set the stage to creates a “massive” medical hemp market. The state produced 3,469 acres of hemp in 2017.

Both Colorado and Oregon demonstrate how loosening rules at the state level encourage the market and allow hemp a legitimate commercial hemp industry to develop.

HUGE MARKET FOR HEMP

According to a 2005 Congressional Research Service report, the U.S. is the only developed nation that hasn’t developed an industrial hemp crop for economic purposes.

Experts suggest that the U.S. market for hemp is around $600 million per year. They count as many as 25,000 uses for industrial hemp, including food, cosmetics, plastics and bio-fuel. The U.S. is currently the world’s #1 importer of hemp fiber for various products, with China and Canada acting as the top two exporters in the world.

During World War II, the United States military relied heavily on hemp products, which resulted in the famous campaign and government-produced film, “Hemp for Victory!”

WHAT’S NEXT

SB1409 was referred to the Rules Committee where it will be assigned to a Senate standing committee for consideration. It will have to pass committee by a majority vote before moving forward in the legislative process.

Mike Maharrey
March 06, 2018 at 12:09PM

Tenth Amendment Center: Washington D.C. Will Never Limit Itself

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...from Tenth Amendment Center

TAC memberships help us produce more educational tools like this. Members can download this video and read the full transcript here.

Relying on the federal government to limit the power of the federal government is not just bad strategy – it rejects the advice of the Founders.

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Michael Boldin
March 06, 2018 at 12:06PM

Tenth Amendment Center: In Defense of the Right to Keep and Bear Arms

From Tenth Amendment Center

...from Tenth Amendment Center

The Ash Wednesday massacre at Marjory Stoneman Douglas High School in Parkland, Florida, seems to have broken more hearts than similar tragedies that preceded it. It was no more senseless than other American school shootings, but there is something about the innocence and bravery and eloquence of the youthful survivors that has touched the souls of Americans deeply. 

After burying their dead, the survivors have mobilized into a mighty political force that loosely seeks more laws to regulate the right to keep and bear arms. The young people, traumatized and terrified with memories of unspeakable horror that will not fade, somehow think that a person bent on murder will obey gun laws.

Every time I watch these beautiful young people, I wince, because in their understandable sadness is the potential for madness — “madness” being defined as the passionate and stubborn refusal to accept reason. This often happens after tragedy. After watching the government railroad Abraham Lincoln’s killer’s conspirators — and even some folks who had nothing to do with the assassination — the poet Herman Melville wrote: “Beware the People weeping. When they bare the iron hand.”

It is nearly impossible to argue rationally with tears and pain, which is why we all need to take a step back from this tragedy before legally addressing its causes.

If you believe in an all-knowing, all-loving God as I do, then you accept the concept of natural rights. These are the claims and privileges that are attached to humanity as God’s gifts. If you do not accept the existence of a Supreme Being, you can still accept the concept of natural rights, as it is obvious that humans are the superior rational beings on earth. Our exercise of reason draws us all to the exercise of freedoms, and we can do this independent of the government. Stated differently, both the theist and the atheist can accept the concept of natural human rights.

Thomas Jefferson, who claimed to be neither theist nor atheist, wrote in the Declaration of Independence that all men are created equal and are “endowed by their Creator with certain unalienable Rights.” Such rights cannot be separated from us, as they are integral to our humanity. Foremost among our unalienable rights is the right to life — the right to be and to remain alive.

And that right implies the right to defend life — the right to self-defense. If I am about to assault you in the nose, you can duck, run away or punch me first. If I am about to strike your children, you can strike me first. If I am about to do either of those things with a gun, you can shoot me first, and no reasonable jury will convict you. In fact, no reasonable prosecutor will charge you.

The reason for all this is natural. It is natural to defend yourself — your life — and your children. The Framers recognized this right when they ratified the Second Amendment. They wrote it to ensure that all governments would respect the right to keep and bear arms as a natural extension of the right to self-defense.

In its two most recent interpretations of the right to self-defense, the Supreme Court characterized that right as “pre-political.” That means the right pre-existed the government. If it pre-existed the government, it must come from our human nature. I once asked Justice Antonin Scalia, the author of the majority’s opinion in the first of those cases, called the District of Columbia v. Heller, why he used the term “pre-political” instead of “natural.” He replied, “You and I know they mean the same thing, but ‘natural’ sounds too Catholic, and I am interpreting the Constitution, not Aquinas.”

With the Heller case, the court went on to characterize this pre-political right as an individual and personal one. It also recognized that the people who wrote the Second Amendment had just fought a war against a king and his army — a war that they surely would have lost had they not kept and carried arms that were equal to or better than what the British army had.

They didn’t write the Second Amendment to protect the right to shoot deer; they wrote it to protect the right to self-defense — whether against bad guys, crazy people or a tyrannical government bent on destroying personal liberty.

In Heller, the court also articulated that the right to use guns means the right to use guns that are at the same level of sophistication as the guns your potential adversary might have, whether that adversary be a bad guy, a crazy person or a soldier of a tyrannical government.

But even after Heller, governments have found ways to infringe on the right to self-defense. Government does not like competition. Essentially, government is the entity among us that monopolizes force. The more force it monopolizes the more power it has. So it has enacted, in the name of safety, the least safe places on earth — gun-free zones. The nightclub in Orlando, the government offices in San Bernardino, the schools in Columbine, Newtown and Parkland were all killing zones because the government prohibited guns there and the killers knew this.

We all need to face a painful fact of life: The police make mistakes like the rest of us and simply cannot be everywhere when we need them. When government fails to recognize this and it disarms us in selected zones, we become helpless before our enemies.

But it could be worse. One of my Fox News colleagues asked me on-air the other day: Suppose we confiscated all guns; wouldn’t that keep us safe? I replied that we’d need to start with the government’s guns. Oh, no, he said. He just meant confiscation among the civilian population. I replied that then we wouldn’t be a civilian population any longer. We’d be a nation of sheep.

Judge Andrew Napolitano
March 06, 2018 at 11:31AM

Tenth Amendment Center: Louisiana Bills Would Legalize Limited Raw Milk Sales; First Step to Nullify Federal Prohibition Scheme

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...from Tenth Amendment Center

BATON ROUGE, La. (March 6, 2018) – Bills prefiled in the Louisiana House and Senate would legalize limited raw milk sales in the state, taking an important step toward effectively nullifying a federal prohibition scheme in effect.

Sen. Eric LaFleur (D-Ville Platte) prefiled Senate Bill 188 (SB188) on Feb. 28. Rep. Malinda White (D – Bogalusa) introduced a companion bill (HB437) in the House. The legislation would allow farmers to sell unpasteurized cow and goat milk directly to consumers. The law would limit raw milk sales to an average of 500 gallons per month.

Current Louisiana law imposes a complete ban on the sale, transport and importation of raw milk or raw milk products.

SB29 would establish labeling requirements, and sellers would have to meet extensive and strict sanitary regulations under the law.

In 2016, a similar bill passed the Louisiana Senate but never received a committee hearing in the House.

Impact on Federal Prohibition

FDA officials insist that unpasteurized milk poses a health risk because of its susceptibility to contamination from cow manure, a source of E. coli.

“It is the FDA’s position that raw milk should never be consumed,” agency spokeswoman Tamara N. Ward said in November 2011.

The FDA’s position represents more than a matter of opinion. In 1987, the feds implemented 21 CFR 1240.61(a), providing that, “no person shall cause to be delivered into interstate commerce or shall sell, otherwise distribute, or hold for sale or other distribution after shipment in interstate commerce any milk or milk product in final package form for direct human consumption unless the product has been pasteurized.”

Not only do the feds ban the transportation of raw milk across state lines, they also claim the authority to ban unpasteurized milk within the borders of a state.

“It is within HHS’s authority…to institute an intrastate ban [on unpasteurized milk] as well,” FDA officials wrote in response to a Farm-to-Consumer Legal Defense Fund lawsuit against the agency over the interstate ban.

The FDA clearly wants complete prohibition of raw milk and some insiders say it’s only a matter of time before the feds try to institute an absolute ban. Armed raids by FDA agents on companies like Rawsome Foods back in 2011 and Amish farms over the last few years also indicate this scenario may not be too far off.

Legislation like SB188 and HB437 takes a step toward nullifying this federal prohibition scheme.

As we’ve seen with marijuana and industrial hemp, an intrastate ban becomes ineffective when states ignore it and pass laws encouraging the prohibited activity anyway. The federal government lacks the enforcement power necessary to maintain its ban, and people will willingly take on the small risk of federal sanctions if they know the state will not interfere. This increases when the state actively encourages the market and nullifies federal prohibition in effect.

We’ve seen this demonstrated dramatically in states that have legalized industrial hemp. When they authorized production, farmers began growing industrial hemp, even in the face of a federal ban. Despite facing the possibility of federal prosecution, some growers were still willing to step into the void and begin cultivating the plant once the state removed its barriers.

In the same way, removing state barriers to raw milk consumption, sale and production would undoubtedly spur the creation of new markets for unpasteurized dairy products, no matter what the feds claim the power to do.

It could ultimately nullify the interstate ban as well. If all 50 states allow raw milk, markets within the states could easily grow to the point that local sales would render the federal ban on interstate commerce pointless. And history indicates the feds do not have the resources to stop people from transporting raw milk across state lines – especially if multiple states start legalizing it. Growing markets will quickly overwhelm any federal enforcement attempts.

WHAT’S NEXT

SB188 and HB437 will be officially introduced after the regular session convenes on March 12. SB188 will be referred to the Senate Health and Welfare Committee. HB437 will be referred to the House Agriculture, Forestry, Aquaculture and Rural Development Committee. The bills will have to pass their committees by a majority vote before moving forward in the legislative process.

Mike Maharrey
March 06, 2018 at 06:10AM

Tenth Amendment Center: 16 Choice Quotes from James Madison, the “Father of the Constitution”

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...from Tenth Amendment Center

March 4th marks the anniversary of the beginning of government under the U.S. Constitution in 1789. It seldom gets any popular attention. But it certainly deserves some, especially in an era when we have moved so far from the very limited government the Constitution authorized (limits enhanced by the ratification of the Bill of Rights in 1791) with American citizens as the clear losers.

One useful way to mark this uncelebrated date might be to remember what James Madison, the “father of the Constitution,” had to say about its meaning. After all, no one in our founding generation had a greater hand in constructing and interpreting the highest law of the land, and his understanding of a tightly limited government stands sharply at odds with the Brobdingnagian role our government has since arrogated to itself.

“Hitherto charters have been written grants of privileges by governments to the people. Here they are written grants of power by the people to their governments.”

“All power is originally vested in, and consequently derived from, the people.”

“The diversity in the faculties of men, from which the rights of property originate…protection of these faculties is the first object of government.”

“In a just and free government…rights of both property and of persons ought to be effectively guarded.”

“True liberty…the Constitution…is its palladium.”

“I am dogmatically attached to the Constitution in every clause, syllable, and letter.”

“The meaning of the Constitution should be fixed and known.”

“The legitimate meanings of [the Constitution] must be derived from the text itself.”

“The powers of the federal government are enumerated; it can only operate in certain cases; it has legislative powers on defined and limited objects, beyond which it cannot extend its jurisdiction.”

“Equal laws, protecting equal rights.”

“The real measure of the powers meant to be granted to Congress by the Constitution is to be sought in the specifications…not…with a latitude that, under the name or means for carrying into execution a limited government, would transform it into a government without limits.”

“With respect to the words, ‘general welfare,’ I have always regarded them as qualified by the details of power connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution…not contemplated by the creators.”

“I cannot…lay my finger on that article of the Constitution which granted a right to Congress of expending, on objects of benevolence, the money of their constituents.”

“If Congress can employ money indefinitely…the powers of Congress would subvert the very foundation, the very nature of the limited government established by the people of America.”

“There is no maxim…more liable to be misapplied…than…that the interest of the majority is the political standard of right and wrong…nothing can be more false…it would be the interest of the majority in every community to despoil and enslave the minority…re-establishing…force as the measure of right.”

“Laws are unconstitutional which infringe on the rights of the community …government should be disarmed of powers which trench upon those particular rights.”

James Madison, author of many of the most important Federalist Papers, defender of the Constitution before the Virginia ratifying convention, and sponsor of the Bill of Rights in the House of Representatives, was the preeminent interpreter of the Constitution for half a century. He made it clear that its role was to clearly enumerate the limited powers given to the federal government and to defend Americans from “the first experiment on our liberties” by its hand.

Madison left no doubt that the Constitution was to remain the highest law of the land in fact as well as on paper because only then could our liberties be defended against government abuse. The Constitution was not to be a “living document” that could transform its protections into excuses for the government overstepping of its limited, delegated sphere.

The anniversary of American government under the Constitution is an appropriate occasion to remember that, as we have increasingly abandoned its protections against predatory government, the intended servants of our rights and freedoms now act more and more like masters than servants.

Gary M. Galles is a professor of economics at Pepperdine University. His recent books include Faulty Premises, Faulty Policies (2014) and Apostle of Peace (2013). He is a member of the FEE Faculty Network.

This article was originally published on FEE.org. Read the original article.

Tenth Amendment Center
March 04, 2018 at 08:27AM