New Montana Law Restricts Police E-Surveillance

Published June 8, 2017

Starting on October 1, local and state law-enforcement agencies in Montana will have to obtain a warrant from a judge before demanding records of people’s electronic data from third parties, such as internet service providers or mobile phone companies.

House Bill 148 sponsor state Rep. Daniel Zolnikov (R-Billings) says the bill closes a loophole government agencies use to circumvent constitutional privacy protections.

“Nationally, the Fourth Amendment doesn’t apply to digital communication, like e-mails or texts,” Zolnikov said. “If you e-mail me and it goes through, say, Gmail, … since it went through a server that’s in neither of our possession, there is no expectation of privacy, so it’s not protected under the Fourth Amendment. There’s a lack of privacy protection.”

Burden of Proof

Zolnikov says the new law requires law-enforcement agencies to convince a court the requested electronic surveillance is necessary.

“This bill requires a burden of proof, basically a Fourth Amendment requirement, to use a warrant or investigative subpoena, but the investigative subpoena has to fall under the Fourth Amendment’s standard,” Zolnikov said. “It’s a different tool, but we want them to have the standard of burden of proof to go through your stuff. It applies to all digital and electronic communications.”

In April, Montana Gov. Steve Bullock (D) suggested an amendment requiring law-enforcement agencies to obtain a subpoena demonstrating probable cause to a judge. Earlier versions of HB 148 simply required a subpoena without a probable-cause requirement. The legislature passed the amended bill.

Some Loopholes Remain

Adam Schwartz, a senior staff attorney with the Electronic Frontier Foundation, says although Bullock’s amendment improved the bill, problematic provisions allowing police to delay notifying surveilled individuals remain uncorrected. The new law says government agencies “may include” an application for delaying notifications to surveilled individuals.

“I’m pleased that the governor changed the standard of getting the warrant, so that it’s not just a subpoena, but it’s a subpoena based on probable cause from a judge,” Schwartz said. “I think that the standard of delayed notification—the word ‘may’ as opposed to ‘will’—is too soft.”

Despite what he sees as the new law’s shortcomings, Schwartz says it is a big, positive change.  

“Overall, the bill is a significant step forward,” Schwartz said. “The provider has a First Amendment right to tell the customer what is going on, and the customer has a Fourth Amendment right to know what’s going on, so they can go to court and protect themselves.”