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Back to the Governor: Montana House Gives Final Approval to Bill Taking on Warrantless Electronic Data Collection

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HELENA, Mont. (April 14, 2017) – On Wednesday, the Montana House gave final approval to the governor’s proposed amendments to a bill that would require police to get a warrant in order to obtain electronic communication information from service providers in most cases. If signed into law, the legislation would not only increase privacy protections in the state, it would also hinder one practical aspect of federal surveillance programs.

Rep. Daniel Zolnikov introduced House Bill 148 (HB148) on Jan. 2. Under the proposed law, a government entity could only require electronic communication service providers to disclose the contents of electronic communications stored, held, or maintained by that service pursuant to a warrant. The law would not prohibit electronic communications providers from voluntarily disclosing information where authorized under law. It would also allow 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 would be inadmissible in court, and it could not 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 Wednesday, approving the new language 46-4. The measure now goes back to Bullock for his signature.

The legislation works together with another bill waiting for the governor to act. HB147 would ban warrantless collection of data from directly from an electronic device in most situations.

PARALLEL CONSTRUCTION

By making information obtained in violation of the law inadmissible in court, passage of HB148 would 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.

WHAT’S NEXT

Gov. Bullock will have 10 days from the transmittal date to sign or veto HB148. If he fails to act within that time, the bill will become law without his signature.