Anti-spying bill author optimistic despite upswell of opposition in Kansas

By Travis Perry │ Kansas Watchdog

TOPEKA, Kan. — New legislation intended to keep citizen data out of government hands encountered steep opposition Tuesday from – wait for it – the government.

But opponents representing law enforcement, county prosecutors and local municipalities across Kansas say in its current form the bill is simply too broad, and would do more harm than good.

Members of the state House Judiciary Committee spent more than 90 minutes hashing out the details of Rep. Brett Hildabrand‘s HB 2421, the Fourth Amendment Preservation and Protection Act of 2014.

The Shawnee Republican previewed the bill to Kansas Watchdog last November, and ensured the legislation was among the first to be filed for consideration prior to the start of the 2014 legislative session.

Hildabrand’s bill plainly forbids any Kansas government entity from “possessing or attempting to possess” data on a person or group that is “held by a third-party in a system of records.” The bill also expressly prevents such information from being accessed through legal discovery or subpoena, really anything short of a court-ordered warrant unless an individual otherwise gives permission.

Larry Baer, legal counsel for the League of Kansas Municipalities, informed lawmakers that as it’s currently written, HB 2421 could criminalize something as trivial as looking up a phone number.

“Rep. (Craig) McPherson could not go to the league’s database to look up a mayor’s phone number to call them to talk to them,” Baer said. “That mayor could not go to the legislative database to call you at home over the weekend.”

Law enforcement and county prosecutors detailed more serious examples, citing that such restrictions could hinder everything from routine traffic stops to homicide and child pornography investigations, all of which may query some form of third-party database for information.

Johnson County District Attorney Stephen Howe said criminal investigations routinely utilize publicly-available data on social media and elsewhere on the web to develop leads. And in the case of emails or other data that may not be readily accessible, and which may not meet the burden required of a criminal search warrant, Howe cited the necessity of subpoenas, which must first be approved by a district judge.

“(Subpoenas are) something our jurisdiction does weekly,” Howe said.

“We don’t want to violate the Fourth Amendment. The Fourth Amendment protects me as well as an individual,” Howe told committee members. “We take our job very seriously in Kansas, and we respect the rights of citizens. We don’t go willy-nilly checking the personal information of individuals.”

Opposition testimony was also submitted by officials with the Kansas Department for Children and Families, who said the bill would complicate everything from combating welfare fraud to distributing federal funds for foster children. Additionally, a fiscal note submitted by interim state budget director Jon Hummell states that, if passed unchanged, the bill’s impact could be in the hundreds of millions of dollars.

In defending the legislation and defining its intended goal, Hildabrand, along with American Civil Liberties Union of Kansas advocacy director Holly Weatherford, said he’s not aware of any cases where state authorities have hoarded citizens’ data in a similar fashion to the much-maligned practices of the National Security Agency. The representative previously told Kansas Watchdog the bill is intended as a preemptive strike of sorts, to tamp-down the issue before it became a problem.

Hildabrand said the bill was spurred by a December report in USA Today, which stated that one in four law enforcement agencies around the country are using NSA-like techniques to spy on the law-abiding public.

“The end result of a people who are monitored in their daily communications by the government is self-censorship,” Hildabrand said.

In batting around the merits and consequences of the legislation, committee members attempted to get a feel for the intent of the bill. Despite the upswell of opposition and the laundry list of potential issues, Hildabrand remains confident the bill will still see the light of day.

“My feeling is that the bill will be worked because of the public interest, but there will be additional amendments for clarifying language and perhaps narrowing the scope,” said Hildabrand, who added that the legislation was crafted with criminal and civil forfeiture cases in mind.

Related: Kansas lawmaker pens pre-emptive strike against Big Brother

Contact Travis Perry at travis@kansaswatchdog.org, or follow him on Twitter at @muckraker62. Like Watchdog.org? Click HERE to get breaking news alerts in YOUR state!

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