HELENA, Mont. (Feb. 26, 2021) – On Tuesday, the Montana Senate unanimously passed a bill that would put a state constitutional amendment on the ballot to elevate the privacy of a person’s electronic communications and data to the same level as “persons, houses, papers and possessions.”

Sen. Kenneth Bogner (R-Miles City) introduced Senate Bill 203 (SB203) on Feb. 9.  If approved, the resolution would allow voters to consider an amendment to Article II, section 11 of the Montana State Constitution that would require the government to obtain a search warrant in order to access a person’s electronic data or electronic communication. The amendment would add the following highlighted words to Article II Sec. 11 of the state constitution.

“Searches and seizures. The people shall be secure in their persons, papers, electronic data and communications, homes, and effects from unreasonable searches and seizures. No warrant to search any place, or to seize any person or thing, or to access electronic data or communications shall issue without describing the place to be searched or the person or thing to be seized, or without probable cause, supported by oath or affirmation reduced to writing.”

If passed by both the Senate and House by a 2/3 vote, the proposed amendment would go before Montana voters in November 2022.

On Feb. 23, SB203 passed the Senate 50-0.

A similar ballot measure passed in Michigan in the 2020 general election.

Language in SB203 was modeled on Missouri Amendment 9, which passed in with an overwhelming 75 percent of the vote in 2014. A similar state constitutional amendment to protect “private and personal information” passed in New Hampshire in 2018.

As the ACLU pointed out in an article supporting the New Hampshire amendment, without protections explicitly enshrined in the state constitution, the right to electronic data privacy exists at the whims of state legislators.

“Without state constitutional protections, privacy is not the … default setting. Rather, it needs to be repeatedly established, protected, and defended by the state legislature each time a new surveillance technology or method is established, which is a common occurrence in our modern technological world. State legislators should not play an endless game of Whack-A-Mole against threats to their residents’ privacy. Relying exclusively on piecemeal statutes or search and seizure provisions written before the dawn of the internet is no way … to protect privacy.”

Practically speaking inclusion of electronic communications and data in the state’s constitutional prohibition on unreasonable searches and seizures would mean state and local police in Montana would be required to obtain a judicial warrant, supported by probable cause, before accessing cell phones and other electronic devices regardless of legislative statute. It would also set the foundation to help prevent law enforcement from accessing private information through third parties.

IMPACT ON FEDERAL SURVEILLANCE

While a state constitutional amendment only binds state agencies and not the federal government, the amendment would also set the foundation to help protect Montanans from the ever-growing federal surveillance state.

Passage of the proposed amendment would set the foundation to limit state and local surveillance and minimize the amount of personal information collected and stored by state and local governments. By doing so, it would also impact federal surveillance programs that depend on state and local support.

The feds can share and tap into vast amounts of information gathered at the state and local level through fusion centers and a system known as the “information sharing environment” or ISE.

Fusion centers were sold as a tool to combat terrorism, but that is not how they are being used. The ACLU pointed to a bipartisan congressional report to demonstrate the true nature of government fusion centers: “They haven’t contributed anything meaningful to counterterrorism efforts. Instead, they have largely served as police surveillance and information sharing nodes for law enforcement efforts targeting the frequent subjects of police attention: Black and brown people, immigrants, dissidents, and the poor.”

Fusion centers operate within the broader ISE. According to its website, the ISE “provides analysts, operators, and investigators with information needed to enhance national security. These analysts, operators, and investigators…have mission needs to collaborate and share information with each other and with private sector partners and our foreign allies.” In other words, ISE serves as a conduit for the sharing of information gathered without a warrant. Known ISE partners include the Office of Director of National Intelligence which oversees 17 federal agencies and organizations, including the NSA. ISE utilizes these partnerships to collect and share data on the millions of unwitting people they track.

In practice, local data collection using ALPRs, stingrays, drones and other spy technologies create the potential for the federal government to track the movement of millions of Americans, and obtain and store information on millions of Americans, including phone calls, emails, web browsing history and text messages, all with no warrant, no probable cause, and without the people even knowing it.

In a nutshell, without state and local assistance, the feds have a much more difficult time gathering information. When the state limits surveillance and data collection, it means less information the feds can tap into. This represents a major blow to the surveillance state and a win for privacy.

PARALLEL CONSTRUCTION

By including access to “electronic communications and data” under the same warrant requirements – describing them, probable cause, and supported by oath or affirmation – as “person, houses, papers, and possessions,” it would make such data gathered by federal agencies such as the NSA or FBI and shared with state and local law enforcement more likely to be inadmissible in state criminal proceedings. This protection will remain in place for Montanans even if federal courts ultimately put the seal of approval on warrantless data collection by the NSA and other 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.

This is “the most threatening situation to our constitutional republic since the Civil War,” Binney said.

WHAT’S NEXT

SB203 now moves to the House for further consideration. It was referred to the House Judiciary Committee where it must pass by a majority vote before moving forward in the legislative process.


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