Montana’s proposed digital privacy amendment, explained

As Montana voters head to the polls this fall, they’ll have the chance to amend the state Constitution to add language explicitly requiring law enforcement to obtain a search warrant before accessing a person’s private electronic data.

Constitutional Amendment 48, referred to voters by last year’s Legislature with bipartisan support, is the culmination of several years of efforts intended to boost digital privacy protections in the state.

The initiative, one of two to go before voters this year, would amend Article II, Section 11 of the Montana Constitution to include “electronic data and communications” in the list of private property protected from unreasonable search and seizure. The Constitution currently states that the people of Montana “shall be secure in their persons, papers, homes and effects from unreasonable searches and seizures.”

The new language would codify existing statute and court precedent in Montana’s foundational legal document and buttress Montanans’ privacy against the unknowns of the future, said Sen. Kenneth Bogner, R-Miles City, who carried the bill last session that brought the new language to voters.

“I want to make sure that it’s in black and white that our electronic data and communications are protected,” Bogner said in an interview Monday. “It probably won’t change much, but I want to be 100% certain.”

Bogner’s 2021 measure, Senate Bill 203, passed unanimously out of the state Senate and on a 76-23 vote in the House, with one absence. Twenty-two Democrats and one Republican, Rep. Bill Mercer of Billings, a former U.S. Attorney, voted no. 

In hearings, the bill garnered support from the Frontier Institute and the Montana Chapter of Americans for Prosperity, a libertarian think tank and advocacy group, respectively. It also received support from the left-leaning consumer protection student organization Montana Public Interest Research Group. 

“From our perspective, without explicit constitutional protections, legislators are playing an endless game of whack-a-mole with any new surveillance technology that comes up,” said Kendall Cotton, the Frontier Institute’s president, in a March committee hearing.

Montana County Attorneys Association lobbyist Brian Thompson told lawmakers in February last year that the organization believes the current constitutional language and case law already protects digital information.

“A warrant is always required,” Thompson said. “We don’t see a true substantive change with this constitutional amendment.”

The association’s board is not taking a position on the initiative, Executive Director Nanette Gilbertson said Monday. 

The one group opposed to the bill in last year’s legislative hearings was the Montana Association of Chiefs of Police, though lobbyist Mark Murphy clarified at the time that its opposition was “soft.”

Murphy told lawmakers that the Montana Constitution already protects personal data, if implicitly, and speculated that the amendment’s language could create unintended consequences in the investigation of internet crimes. The real threat to data security, he said at the time, comes from private companies that collect personal data, like Facebook, Google and genetics-tracing firms such as 23andMe.

The amendment would not change how private companies gather data from users, Bogner said. 

Bogner said it’s important for the government to proactively assert that the Constitution protects private data from unreasonable search. The amount of data citizens generate has exploded in recent years, and will only continue to do so, he said, meaning it’s wise to erect guardrails now even if they aren’t immediately useful. 

Montana lawmakers have taken several cracks at enshrining digital privacy in state law over the last several legislative sessions, often with bills originating from a young, bipartisan group of lawmakers concerned with data protections. C-48 is the first digital privacy measure that would amend the state Constitution. 

In 2013, Rep. Daniel Zolnikov, R-Billings, successfully carried a bill requiring the state and local governments to obtain a warrant to access location data on devices like cell phones. In 2017, he and Democratic Missoula Rep. Bryce Bennett championed two more privacy measures, again successfully, this time requiring a warrant to access any electronic device unless informed consent is given and to obtain communications data from a service provider. 

And in the 2021 session, Rep. Katie Sullivan, D-Missoula, sponsored House Bill 479, which built on the Zolnikov-Bennett bill to include digital communications stored by a provider and was signed into law by Republican Gov. Greg Gianforte in April. Sullivan was among the House Democrats who supported C-48.

“For me, as a privacy advocate, to see an effort to enshrine privacy in our Constitution seemed like a good idea,” Sullivan said this week.

Zolnikov said Monday that it’s important for states to lead on digital privacy issues. He said he supports C-48.

“We’re setting precedent,” he said. “Courts look at state policies and what the trends are.” 

At the national level, the U.S. Supreme Court ruled in 2014 that police must obtain a warrant to search a suspect’s cell phone during an arrest, and in 2018 that police need a warrant to search cell phone tracking data. 

Bogner said his constitutional amendment follows a lead set by Michigan, where voters passed the essentially identical Proposal 2 in 2020. Missouri voters approved similar language in 2014.

Ballots will be mailed to Montanans who are registered to vote absentee beginning this Friday, Oct. 14. Election Day is Tuesday, Nov. 8.