Montana lawmakers weigh privacy in the digital age

Section 10 of Montana’s Constitution states that “the right of individual privacy is essential to the well-being of a free society and shall not be infringed without the showing of a compelling state interest.”

But as technology rapidly advances, finding the line between individual privacy and “a compelling state interest” is more complex than ever before. In response, the 2017 Montana Legislature will begin to make distinctions, wrestling with bills that deal with issues like cell phone data, GPS-enabled heart monitors and even revenge porn.

The House Judiciary Committee heard HB 129 last Wednesday, which would outlaw so-called “revenge porn” — explicit sexual images of a person that are put online without their consent. Testimony on the bill, from both proponents and opponents, quickly centered on the notion of the victim’s privacy.

Rep. Ellie Hill-Smith, D-Missoula, said the bill would address images obtained through cell phone hacking, hidden cameras in bedrooms, recorded sexual assaults and more.

Robin Turner, public policy and legal director for the Montana Coalition against Domestic Violence, said such images belong exclusively to the victim, and when their privacy is infringed on, it is the duty of the state to intervene.

Rep. Daniel Zolnikov, R-Billings, said making state laws that ensure those privacy protections is part of his job as a legislator.

Zolnikov is carrying three bills that would specifically limit law enforcement’s ability to obtain electronic information without warrants.

HB 147 would require state law enforcement agencies to obtain a warrant before accessing any electronic device. The bill would go further than a federal Supreme Court ruling that required warrants for accessing only cell phones.

“I was just looking for a heartbeat monitor … that has GPS location,” Zolnikov said. “That’s not a cell phone, but it can tell a lot of information about me.”

HB 148 requires warrants for the obtaining of any and all electronic communications — namely, emails.

“You want a clear-cut standard saying, ‘Yes, this information isn’t in my physical possession, but there is this expectation that it is my information,’” Zolnikov said.

HB 149 preemptively prevents law enforcement agencies from using license plate readers, a technology that has been implemented by police in many states but not Montana. License plate readers photograph license plates at high speeds, and are typically mounted on police vehicles.

Zolnikov’s concerns about license plate readers center on the use of the data. He cited an American Civil Liberties Union finding that only a “tiny fraction” of license plate scans were used for purposes like locating vehicles involved in criminal investigations.

SK Rossi, director of advocacy and policy at the Montana ACLU, will be supporting Zolnikov’s bill. Rossi said the organization has been supportive of Zolnikov’s bills since he was a rookie legislator, and that he has a good grasp on the intricacies of digital privacy.

Rossi said Montanans champion their right to privacy.

“It’s something that’s deeply ingrained in our culture, and it’s something we lose track of a little bit,” Rossi said. “Most people have little comprehension of just how much of our information is being accessed — by corporations, for sure, but the government as well on a daily basis.”

Both Rossi and Zolnikov said the fear of being listened in on prevents freedom of communication.

“It chills that communication if privacy isn’t protected, and, frankly, it chills free speech,” Rossi said.

Zolnikov carried similar bills last session, but none of them passed. Rep. Steve Fitzpatrick, R-Great Falls opposed one bill on license plate readers in 2015.

Fitzpatrick, a lawyer, said while he believes in the right to privacy, he does not agree with Zolnikov’s assertion that license plate readers present a privacy violation because they scan for information in a public space.

“We can’t get to the point where we’re regulating everything to death, so that police and law enforcement can’t do their job,” Fitzpatrick said.

Law enforcement agencies have opposed similar legislation in the past.

Mark Murphy, a lobbyist for the Montana County Attorneys Association and the Montana Association of Chiefs of Police, said while the organizations he represents do not have official stances on Zolnikov’s bills, these tools are useful for law enforcement, and police and prosecutors typically do a good job of keeping information private.

“Those kinds of things are an assistance to law enforcement in the investigation of crime. But there’s a legislative, ongoing debate about how much of that information we want to have available to law enforcement,” Murphy said.

Michael Siebert is a reporter with the UM Community News Service, a partnership of the University of Montana School of Journalism and the Montana Newspaper Association.