Just 1 State Already Had Anti-Surveillance Laws When The NSA Scandal Broke

In Big Sky country, privacy is a bipartisan issue.
By @katierucke |
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    In this June 29, 2012 photo Montana Governor (then Attorney General) Steve Bullock speaks after receiving the endorsement of some law enforcement officials in front of the Lewis and Clark County courthouse in Helena, Mont. (AP/Matt Gouras)

    In this June 29, 2012 photo Montana Governor (then Attorney General) Steve Bullock speaks after receiving the endorsement of some law enforcement officials in front of the Lewis and Clark County courthouse in Helena, Mont. (AP/Matt Gouras)

    Before National Security Agency whistleblower Edward Snowden leaked documents showing that the federal government had been conducting mass surveillance on the American public, the Montana state legislature passed a law preventing state and local governments from using electronic devices to spy on residents.

    The bill was signed into law by Gov. Steve Bullock, a Democrat, on May 6, making Montana the first state to require state and local government to obtain a probable-cause warrant before surveilling personal electronic devices.

    Montana’s law defines an electronic device as a tool that “enables access to or use of an electronic communication service, remote computing service, or location information service.” This includes cellphones, laptops and tablets.

    Exceptions are provided for life-threatening emergencies, stolen devices, and cases where the owner consents to a search. Federal laws such as the Patriot Act are also unaffected by the state law.

    Rep. Daniel Zolnikov (R-Billings) was the author of the state’s anti-spying legislation. He said he originally wanted to pass a bill that would prevent private companies and the federal government from accessing personal information without a warrant. When it became clear that bill was going nowhere, he made some adjustments to the legislation, he said.

    Zolnikov said portions of the bill that would have required federal law enforcement officials to obtain a warrant were removed because of the supremacy clause in the U.S. Constitution, which says federal law overrides state law in cases where they conflict.

    In addition to removing the restrictions on the federal government, Zolnikov said he was forced to remove the restrictions barring third parties, such as cellphone companies, from sharing personal information about customers.

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

    Inspired by a similar bill up for debate in the Texas state legislature, Zolnikov said he authored the legislation because he thought if other states were protecting residents from excessive spying programs, Montana should, as well.

    It wasn’t until the Montana state legislature passed the legislation that Zolnikov and other state lawmakers realized they were the first to pass such a law in the U.S. Though similar legislation had been considered in about a dozen other states, including Maine and Massachusetts, no other state legislature has been able to pass a similar bill.

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

    Zolnikov’s colleague, Sen. Chas Vincent (R-Libby), applauded his ability to recognize a need for limits on electronic spying before news of the NSA surveillance broke, and said state lawmakers realized there was a need for cyber-privacy laws.

    “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.

    Though the bill’s initial passage earlier this spring didn’t attract much attention, many privacy rights advocates have applauded Montana’s law in the wake of the NSA revelations and encouraged other states to follow suit.

    “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,” said Allie Bohm, advocacy and policy strategist at the American Civil Liberties Union. “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.”

    In addition to inspiring other states to follow suit, the Daily Inter Lake reported that Montana’s law may also create momentum for the passage of the Geolocation Privacy and Surveillance Act — the federal counterpart to the state’s anti-spying legislation.

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