Initiative would make privacy of electronic data more explicit

Proponents say this year's constitutional amendment on the ballot will update Montanans' right to privacy for the 21st century, but opponents and analysts are wondering what, if anything, it would actually change.

The ballot initiative, C-48, would modify the privacy clause of the state constitution to include electronic data and communications explicitly, meaning police would need a search warrant to access cell phone or other electronic data.

Sen. Kenneth Bogner, R-Miles City, sponsored the bill.

After hearing from constituents concerned about data protection, Bogner said he wanted to ensure Montana's constitution offered clear language on electronics.

"As we move to an age of data and privacy and security, it's very important that we know that our data and privacy is protected and that it's black and white in the constitution that Montana citizens have those protections," Bogner said.

Despite potentially limiting access to information for law enforcement, C-48 is supported by the Montana County Attorney's Association, which represents local prosecutors across the state. Government relations liaison and lobbyist Brian Thompson said the best way to reflect the opinion of the association was that they're "okay with it."

Thompson said local prosecutors already considered electronic data and communications protected under the general privacy clause.

"This is not a change to the constitutional provision in the state of Montana regarding a right to privacy," Thompson said during the hearing.

The college student-focused Montana Public Interest Research Group echoed Thompson's position when the ballot initiative was debated during the last legislative session. MontPIRG board member Katjana Stutzer said that even if nothing ultimately changed, the protection of digital information should be enshrined in the constitution.

But it's whether this is a right that is already implied in the constitution has provoked most of the opposition to the ballot initiative.

"If we're already doing this," Mark Murphy, lobbyist for the Montana Association of Chiefs of Police, said at the hearing, "What do we need a constitutional amendment for?"

Murphy cautioned that adding such language may have unintended consequences. He pointed to the justice reinvestment program, which gathers data relating to the criminal justice system, and said the initiative may make it harder to gather that data.

From a national perspective, privacy advocates see the proposal as maintaining the status quo. Jake Wiener, counsel with the Electronic Privacy Information Center, said C-48 could be read to require the police to get a warrant to look at any type of electronic information, ranging from cell phone records, search histories and geolocation. Wiener noted that getting a warrant is not a substantial burden on police.

But Wiener said the way the amendment is written, it's not changing anything. Regulations at the federal level are already in place to assure these electronic protections.

"A court could interpret the text of the proposed amendment to require a warrant for searching electronic data held by third parties, which would substantially reduce wrongful surveillance," Wiener said. "But the amendment can also be read to do little more than preserve the status quo. Because the amendment does not say whether it applies to personal data and communications records that are in the legal possession of third parties, it is open to multiple interpretations."

And it is that confusion that prompted others to oppose the initiative. The only Republican to oppose in a final vote was someone who knows about law enforcement and prosecutions, former Associate U.S. Attorney General Bill Mercer.

Mercer said he was worried that in the end, the language had the potential to make the constitution more confusing.

"I really wonder if there is a merits case that we have a problem," he said. "Yeah, things in the 21st century are different in the way that people communicate, but do we believe that somehow that language is not adequately protective? And if we believe that, let's come up with some real-life examples."