HELENA, Mont. (Feb. 2, 2017) – Two bills that would together ban warrantless collection of cell phone data in most situations unanimously passed an important Montana House committee 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 both House Bill 147 (HB147) and House Bill 148 (HB148). Working together, these two bills would require government agencies to get a warrant before obtaining data from electronic devices such as smart phones, computers and tablets in most situations.

The House Judiciary Committee approved both measures by a 19-0 vote after approving some technical amendments.

HB147 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.

Under HB148, 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. The law would not prohibit electronic communications providers from voluntarily disclosing information where authorized under law. It would also allow police to obtain electronic communications content subject to a subpoena authorized under the laws of the state.

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

In both bills, 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.

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 and 148 will now move to the full House for further consideration.