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Montana Bill to Ban Warrantless Collection of Electronic Data Passes House

HELENA, Mont. (Feb. 16, 2017) – A Montana bill that would ban warrantless collection of data from an electronic device in most situations unanimously passed the House yesterday. Final 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 sponsors Bill 147 (HB147). The legislation would require a government agency to get a warrant before accessing the data in any electronic device unless it has informed, affirmative consent of the owner. It would also allow warrantless access to an electronic device in accordance with judicially recognized exceptions to warrant requirements, if the owner has already made the stored data public, or if there exists a possible life-threatening situation.

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.

The House passed HB147 by a 94-4 vote.

This legislation would work with a second bill that passe by the House last week to ban warrantless collection of all cell phone data in most situations. HB148 would prohibit warrantless collection of information from service providers.

PARALLEL CONSTRUCTION

By making information obtained in violation of the law inadmissible in court, passage of HB147 and 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.

UP NEXT

HB147 now move to the Senate for further consideration. It was referred to the Senate Judiciary Committee where it will need to pass by a majority vote before moving forward in the legislative process.