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By Big Margins, Montana House Passes Two Bills to Protect Privacy, Push Back on Surveillance State

HELENA, Mont. (Feb. 27, 2015) – Two bills that would work together to stop the state from conducting mass, warrantless surveillance and help block some of the effects of federal spying programs passed the Montana House yesterday.

The two bills sponsored by Rep. Daniel Zolnikov (R-45) would not only protect the privacy of Montanans, they would also hinder a federal-local surveillance collaboration that the NSA’s former chief technical director called the “biggest threat since the civil war.”

HB445 would prohibit a state or local government agency from obtaining stored data from and electronic device without a warrant with a few specific exceptions. It also requires agencies to give  notice to the owner when it legally obtains electronic data.

HB445 passed the House 62-38.

HB444 would require state and local government agencies to obtain a warrant before requiring an electronic communication provider to disclose “the contents of an electronic communication stored, held, or maintained by that service.” In other words, law enforcement would have to get a warrant before forcing a communications company like AT&T to releasing information about the “substance, purport, or meaning of a communication.” The bill does not include any exceptions to the warrant requirement.The legislation also stipulates that government agencies cannot impose “gag orders” on communication service providers that would prohibit them from disclosing information about the request.

HB444 passed the House 69-31.

Both bills would make data or information collected in violation of the acts inadmissible in court.

Zolnikov’s constituent services and communications director Kyle Schmauch said he was thrilled with the votes.

“We are very happy that House Bills 444 and 445 have passed the House. The bills compliment each other to protect our digital communications, both on our physical devices and on third party servers. HB 444 is Zolnikov’s most important privacy bill of the legislative session as it would set a clear warrant requirement for all electronic communications and can be used as model language to pass similar bills in other states, as well as at the federal level,” he said.

A third bill that would have banned the state from providing “material support or resources” to federal warrantless spying programs failed on third reading by a 49-51 vote.

HB443 passed 51-49 on its second read Wednesday. Vigorous opposition from the Montana Department of Justice effectively killed the measure. The agency claimed the legislation would prevent it from investigating child pornography. But, as Rep. Jeff Essman (R-Billings) pointed out on Wednesday, the bill would do no such thing. A provision in the legislation allowing for data collection under “judicially-recognized exceptions to the warrant requirements” covers those investigations.

FEDERAL INFORMATION SHARING

Despite the failure of HB443, Montana still has the opportunity to effectively stop one practical effect of NSA spying in the state.

The warrant requirement in HB445 includes a prohibition on evidence “obtained” through information sharing by federal agencies.

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.

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 and encourages them to hide the initial source of the data.

This is “the most threatening situation to our constitutional republic since the Civil War,” former NSA chief technical William Binney said.

HB445 would prohibit this kind of information sharing, unless the federal agency obtained the data with a warrant. That would effectively put an end to these “parallel construction” investigations.

NEXT UP

HB444 and HB445 now move on to the state Senate, where they will first be assigned to a committee for consideration before the full Senate can vote on them.

“The Senate is the next big hurdle, but both of these bills have broad, bipartisan support both in the Legislature and from grassroots Montanans,” Schmauch said. “Zolnikov is working hard to continue making Montana the leader in digital privacy with these and other bills.”

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