SALT LAKE CITY, December 7, 2013 — Grassroots efforts to thwart what opponents are calling “mass spying” by the National Security Agency (NSA) are heating up in Utah.
The OffNow coalition of organizations is calling on the state to pass legislation to ban the state or any of its political subdivisions from providing resources to the NSA while it continues its current surveillance programs. The new NSA data center, located in the city of Bluffdale, is reported to require 1.7 million gallons of water every single day to operate. The water, according to reports, is needed to keep the supercomputers in the facility from overheating.
The local CBS affiliate reported on the effort, noting the increased buzz surrounding it. Bluffdale Mayor Derk Timothy brushed off the idea of turning the water off, noting that the city had signed a contract with the NSA. He said, “We have a contract. They negotiated in good faith. We negotiated in good faith.” Timothy also told reporter Brian Mullahy that the city would not even consider turning the water off because of that contract.
Mullahy said, “I asked the Mayor, how long does the contract last? He said, ‘In perpetuity. It keeps going, and going and going.’”
But documents obtained by Connor Boyack of the Utah-based Libertas Institute, a policy think-tank supporting the effort to shut the water off, prove that Timothy is wrong. The contract expires.
Mike Maharrey, national communications director for the Tenth Amendment Center, also noted that no one is actually asking Bluffdale to turn the water off. Instead, the coalition is working to require them to do it through state legislation.
“The proposed Utah 4th Amendment Protection Act would ban any city or state agency from providing material resources, like water, to the NSA while it continues its warrantless mass-spying program. So that would take the decision over it out of the Mayor’s hands,” said Maharrey.
“On top of it,” he continued, “If the Act is signed into law, the local contract will be immediately in conflict with the state law. At that point, it can no longer be renewed, and could actually be deemed invalid in a Utah court of law.”
The documents provided by Boyack and Libertas Institute show that the contract between Bluffdale and the NSA are for a period of ten years, starting September 30, 2011. While the contract could continue beyond that time without “further notice,” passage of the Utah 4th Amendment Protection Act would stop that from happening.
A legal expert who wishes to remain anonymous said that if the state were to pass such a law, it could also invalidate the water contract with the NSA. In its opinion on Salt Lake County v. Holliday Water Co., the Utah Supreme Court wrote that “when a legislative enactment renders preexisting contract terms illegal the contract may be deemed unenforceable.”
While such invalidation is rare, the court does hold that it has the power to invalidate such a contract should the “preservation of the public welfare” require it. Historically, though, Utah courts appear to lean more strongly towards preserving “the freedom to contract.”
At very least, passage of the Utah 4th Amendment Protection Act would turn what Timothy considers a perpetual contract into one that would definitely expire no later than Sept. 30, 2021. It would also create an environment where the current contract could come under a legal challenge to invalidate it.
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