A bill that was advancing in the Florida Legislature as of last week would authorize government surveillance of people whose “views” or “opinions” are deemed “a threat” to state or national “interests.” What could possibly go wrong?
“This outrageous claim of authority would be a profound betrayal of Americans’ First Amendment rights,” Carolyn Iodice, legislative and policy director at the Foundation for Individual Rights and Expression, warns in a press release. “Imagine being arrested or having your home raided because the government has decided that your opinions are a ‘threat’ or simply don’t align with its interests. This puts everyone’s free speech rights at risk. Even if your views aren’t in the state’s crosshairs today, they could be tomorrow. Free societies do not investigate or arrest their own citizens for their opinions.”
The American Civil Liberties Union (ACLU) of Florida also had “grave concerns” about the bill. It “could easily be used to silence dissenting voices under the guise of security,” ACLU of Florida strategist Abdelilah Skhir told Florida Politics last month. “The vague and overbroad language could easily be weaponized against everyday Floridians engaged in First Amendment protected activity.”
State Rep. Danny Alvarez (R–Riverview), who filed the bill on December 30, did not understand what all the fuss was about. He said he was simply trying to combat threats such as “drug cartels,” “terrorist organizations,” and foreign “intelligence entities.” Last week, the Florida Phoenix reported that “Alvarez said it’s only been in the past week that he’s become aware of First Amendment concerns.”
Alvarez’s bill, H.B. 945, would create a Statewide Counterintelligence and Counterterrorism Unit within the Florida Department of Law Enforcement, consisting of “at least seven” 10-member teams. The unit would be charged with “identify[ing] threats by analyzing patterns of life, gathering actionable intelligence, and formulating effective plans of action, and by executing arrests or by revealing its intent to compel a response using all counterintelligence and counterterrorism tradecraft necessary to protect the state from adversary intelligence entities.”
What is an “adversary intelligence entity”? The bill’s definition goes far beyond spies employed by foreign governments. It says the term “includes, but is not limited to, any national, foreign, multinational, friendly, competitor, opponent, adversary, or recognized enemy government or nongovernmental organization, company, business, corporation, consortium, group, agency, cell, terrorist, insurgent, guerrilla entity, or person whose demonstrated actions, views, or opinions are a threat or are inimical to the interests of this state and the United States of America.”
On its face, the bill would empower the Statewide Counterintelligence and Counterterrorism Unit to investigate organizations and individuals based on the “views” or “opinions” they express. Alvarez insisted that was not his intent. But by his own account, he did not recognize the obvious First Amendment implications of that broad mandate until a month and a half after he introduced the bill.
When some of his colleagues alerted him to those civil liberties concerns, Alvarez promised to address them. “We are very, very aware of the questions regarding [the] First Amendment,” he told Florida Politics last week. “We’re going to address that in an amendment that comes to the next committee.” He told reporters he was willing to excise the language referring to any “person whose demonstrated actions, views, or opinions are a threat or are inimical to the interests of this state and the United States of America.”
As of today, however, the original version of the bill was the only one listed on the Florida Legislature’s website. And despite his avowed willingness to amend the bill, Alvarez did not seem to think it was actually necessary to do so.
“That four-cornered document called the Constitution” already provides adequate protection against abuse of the authority that H.B. 945 would grant, Alvarez told Florida Politics. “It’s the same guard rail that…law enforcement has to abide by every single day.”
The bill “is going after terrorists [and] nation-state bad actors, not political speech,” Alvarez said. “A criminal predicate is required prior to any law enforcement activity.” But the bill itself does not impose any such condition. Nor does it include any language saying that it should not be construed to authorize investigations based on constitutionally protected speech.
The “primary goal” of the new unit, H.B. 945 says, “is to conduct statewide counterintelligence and counterterrorism activities to detect, identify, neutralize, and
exploit adversary intelligence entities, international and domestic terrorists, insider threats, corporate threats, and other foreign adversaries to protect this state and the United States of America.” But it defines those threats to include people who express dangerous opinions.
That sweeping mandate evidently did not faze the House Government Operations Subcommittee, which unanimously approved the bill on January 29; the House Judiciary Committee, which gave its assent by a 16–1 vote on February 3; or the House Budget Committee, where 20 of 28 voting members agreed to advance the bill on February 24.
As those last two tallies indicate, there were a few dissenters. Rep. Alex Andrade (R–Pensacola), one of the eight Budget Committee members who voted against H.B. 945, said he had “grave concerns about the abuse of a bill like this,” given the “vagueness” of its language. Rep. Michele Rayner (D–St. Petersburg), another member of that committee who voted no, likewise had “concerns” in light of previous counterintelligence abuses, such as those revealed at the federal level by the Church committee in 1976.
“After the surveillance abuses in the ’60s with federal agents monitoring Americans based on their associations and viewpoints, public outrage forced guardrails into the law,” Bobby Bloch, executive director of the First Amendment Foundation of Florida, noted in response to Alvarez’s bill. “In our lifetime, we have seen how tradecraft has gone off the rails when it doesn’t have these guardrails.”
Notably, Alvarez cited the counterterrorism unit established by the New York Police Department after the 9/11 attacks as a model. That initiative raised objections from critics who complained that it resulted in unjustified surveillance of innocent Muslims. And “in more than six years of spying on Muslim neighborhoods, eavesdropping on conversations and cataloguing mosques,” the Associated Press reported in 2012, “the New York Police Department’s secret Demographics Unit never generated a lead or triggered a terrorism investigation.”
Alvarez, who assures us that the Statewide Counterintelligence and Counterterrorism Unit would respect the First Amendment because law enforcement agencies are required to do so, does not seem to have drawn any lessons from the history of such projects. The next stop for his bill was the House State Affairs Committee, where his promised amendment was supposed to materialize.
If the bill got a nod from that committee, it would go to the House floor for a vote. An identical companion bill in the Senate, sponsored by Sen. Jonathan Martin (R–Fort Myers), passed that chamber’s Criminal Justice Committee by a 7–1 vote on February 11. It still needed the approval of two more Senate committees.
The current legislative session ends on March 13. Maybe a lack of time will defeat the bill. Concerns about its impact on civil liberties manifestly have not been enough.
Update: Edward Longe, director of national strategy and the Center for Technology and Innovation at the James Madison Institute in Tallahassee, reports that the bill looks dead for now. I’d like to take credit, but Longe says Florida’s legislative committees wrapped up last week without holding the hearings that would be necessary for floor votes. Theoretically, he says, legislators could “waive the rules” and “move it straight to the floor,” but that requires a two-thirds majority, and “this isn’t a leadership priority.” Given that reality, I have revised some of the tenses in this post to reflect the bill’s prospects.
