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Montana Bill Takes on Warrantless Electronic Data Collection; Would Hinder a Federal Surveillance Program

HELENA, Mont. (Jan. 3, 2017) – A Montana bill would require police to get a warrant in order to obtain electronic communication information from providers in most cases. Passage of 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 issued by a court upon a finding of probable cause that:

(1) a crime has been committed; and

(2) evidence will be found in the place to be searched.

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, nor a warrant.

HB148 defines “contents” as “any information concerning the substance, purport, or meaning of a communication.”

The law would 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.


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.


HB148 was referred to the House Judiciary Committee where it will need to pass by a majority vote before moving on to the full House for further consideration.