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Montana leads the way in new-age privacy rights

by Seaborn Larson
| July 4, 2013 6:00 AM

Montana made history this spring after passing the first state law to prevent the government from spying on anyone in the state by tracking personal information stored in their electronic devices.

The new state law made Montana a pioneer in the age of electronic privacy rights by requiring state and local government entities to obtain a probable-cause warrant before remotely engaging personal electronic devices.

House Bill 603, sponsored by Rep. Daniel Zolnikov, a Republican from Billings, passed both chambers of the Legislature in April, and was signed into law by Gov. Steve Bullock on May 6.

“I didn’t even know it was the first one in the country,” Zolnikov said. “We just saw other legislation and thought, ‘Why aren’t we doing this?’”

The law defines any electronic device as, “a device that enables access to or use of an electronic communication service, remote computing service, or location information service.” That could mean cell phones, laptops, tablets and other electronic products.

Although the bill’s passage marked a win for Zolnikov, he originally drafted a much more aggressive version of the bill – HB400 – aimed at banning private companies and the federal government from accessing personal electronic data without a warrant.

HB400 was a non-starter in the House Business and Labor Committee. So, Zolnikov introduced a more narrowly targeted version that was later amended to eliminate restrictions on the federal government.

“This is very small compared to what we want to accomplish,” said Zolnikov, who acknowledged that any state law to limit the federal authority would get tied up in court because the Supremacy Clause of the U.S. Constitution states that federal law supersedes state law whenever the two clash.

During the past couple of months, several of the federal government’s spying programs were exposed, leading to a public outcry for more comprehensive rights to privacy.

State Sen. Chas Vincent, a Republican from Libby, said Zolnikov recognized a need for limits on electronic spying before news surfaced that government contractor Edward Snowden had leaked information about several controversial domestic spying programs.

“The NSA reports hadn’t even come out at that time,” Vincent said.

Zolnikov also intended to restrict third parties such as cell phone companies from compiling and distributing personal information from customers who may consider their electronic data private. But the ban on third-party location tracking also bit the dust with HB400.

“It was pretty much big business vs. me, and they don’t want privacy,” Zolnikov said. “I’m all for people’s rights not being sold to the highest bidder.”

The bill includes exceptions that would allow state and local government agencies in Montana to access personal electronic data when “there exists a possible life-threatening situation,” if a device has been stolen, or if the owner of a device provides law enforcement with consent to obtain electronic data.

Although the Montana Legislature was the first to pass a law of this kind, Zolnikov said the idea was inspired by legislative momentum in Texas that paralleled the interests of Montana’s HB603. Zolnikov said the bill in Texas failed because it was too watered down.

In the Montana Legislature, Zolnikov said, support  for his bill depended more on age than party affiliation.

“The younger Democrats and Republicans were the ones really for the bill,” said Zolnikov, who is 25. “The older legislators in Helena didn’t say much for or against it.”

Vincent said state lawmakers recognized the need to pass some form of cyber-privacy law due to problems that have arisen across the state in recent years.

“The reason I voted for the bill and everyone voted for the bill was an issue in Bozeman where an employer required social media passwords so they could access employees’ networks to keep track of proprietary information," Vincent said.

Just this week, The New York Times reported that more than a dozen other states, including Maine and Massachusetts, considered similar legislation this year.

National groups that advocate for privacy rights hailed Montana’s new law, saying other states considering similar legislation now have an example to follow.

The state law may also provide additional momentum for the Geolocation Privacy and Surveillance Act, the federal counterpart of HB603.

“Perhaps Montanans, known for their love of freedom and privacy, intuitively understand how sensitive location information can be and how much where you go can reveal about who you are,” Allie Bohm, advocacy and policy strategist at the American Civil Liberties Union, noted recently. “The majority of state legislatures have adjourned for the year, but we hope they’ll follow Montana’s lead when they take up location tracking next session.”