Tenth Amendment Center: Now in Effect: Two Montana Laws Take on Warrantless Electronic Data Collection
HELENA, Mont. (Oct 5, 2017) – On Sunday, two Montana laws went into effect that work together to ban warrantless collection of cell phone data in most situations. These laws not only increase privacy protections in the state, they also hinder one practical impact of federal surveillance programs.
Rep. Daniel Zolnikov sponsored both House Bill 147 (HB147) and House Bill 148 (HB148). Working together, these two bills require government agencies to get a warrant before obtaining data from electronic devices such as smart phones, computers and tablets in most situations.
HB147 prohibits any state or local government unit from obtaining the stored data of an electronic device without a warrant, unless it has the consent of the owner or authorized user of the device, or in accordance with judicially recognized exceptions to warrant requirements. The law will also allow police to access electronic data if the owner has already made the stored data public, or if there exists a possible life-threatening situation.
Any data obtained in violation of the law will likely be inadmissible in court. The bill also includes provisions authorizing the state attorney general to apply for an injunction or to commence a civil action against any government entity to compel compliance with the law.
HB147 initially passed the House by a 94-4 vote. The Senate passed a version with some technical amendments on March 23 by a 48-1 vote. The House then concurred with the amendments 96-2.
Under HB148, a government entity may only require electronic communication service providers to disclose the contents of electronic communications it stores, holds, or maintains pursuant to a warrant in most situations. The statute does not prohibit electronic communications providers from voluntarily disclosing information where authorized under law. It also allows police to obtain electronic communications content subject to a subpoena authorized under the laws of the state.
HB148 defines “contents” as “any information concerning the substance, purport, or meaning of a communication.”
Evidence obtained in violation of the law will be inadmissible in court, and cannot be used as the basis for obtaining an affidavit, court order, or a warrant.
After it passed both houses of the legislature by wide margins, Gov. Steve Bullock returned HB148 with proposed amendments. Before signing, the governor wanted to ensure both warrants and investigative subpoenas issued to authorize accessing electronic data would have to be based on probable cause. As originally passed, police could have accessed data with a subpoena issued at a lower evidentriary standard.
The House approved the governor’s amendments on April 10 by a 91-8 margin. The Senate followed suit, approving the new language 46-4.
Both laws went into effect on Oct. 1.
PARALLEL CONSTRUCTION
By making information obtained in violation of the law inadmissible in court, the new statutes effectively stop one practical effect of NSA spying in Montana.
Reuters revealed the extent of such NSA data sharing with state and local law enforcement in an August 2013 article. According to documents obtained by the news agency, the NSA passes information to police through a formerly secret DEA unit known Special Operations Divisions and the cases “rarely involve national security issues.” Almost all of the information involves regular criminal investigations, not terror-related investigations.
After the SOD passes along this information, it then works with state and local law enforcement to “create” an investigation, working backward to obscure the origin of the evidence. For instance, the SOD might instruct local police to obtain a warrant to collect information they already have via information sharing. It creates the illusion that the investigation and prosecution proceeded in a constitutionally permissible way
In other words, not only does the NSA collect and store this data, using it to build profiles, the agency encourages state and local law enforcement to violate the Fourth Amendment by making use of this information in their day-to-day investigations.
This is “the most threatening situation to our constitutional republic since the Civil War,” Binney said.
Mike Maharrey
October 05, 2017 at 10:57AM
