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To the Governor’s Desk: Montana Legislature Approves Bill to Ban Warrantless Collection of Electronic Data

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HELENA, Mont. (April 3, 2017) – On Saturday, the Montana House gave final approval to a bill that would ban warrantless collection of data from an electronic device in most situations. If signed by Gov. Steve Bullock, 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 prohibit 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 proposed law would 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 would 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 pass a version with some technical amendments on March 23 by a 48-1 vote. On Saturday, the House concurred with the amendments 96-2, sending the bill to the governor.

This legislation would work with a second bill 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.

WHAT’S NEXT

Gov. Bullock will have 10 days from the date of transmittal to sign or veto the legislation. If he takes no action, it will become law without his signature. You can contact the governor and encourage him to sign HB147 HERE.