Op-ed: Protecting Montanans from government surveillance

We scored a big win for Montanans' privacy and against invasive surveillance technology during this year's legislative session. My Senate Bill 397 severely restricts government's use of facial recognition technology and is now law in the Last Best Place.

Legislators conducted a study of facial recognition between the 2021 and 2023 legislative sessions. We learned how state government was beginning to deploy the technology and even discovered that at least one school district (Sun River Valley) had already installed it in its schools a couple years ago. We also heard from law enforcement about its potential uses to quickly find missing persons and more.

The law I passed strikes the right balance of protecting Montanans from mass surveillance while making use of facial recognition technology in appropriate, limited circumstances.

First, the bill is only targeted at the government's use of the technology. Private uses, such using your face to unlock your iPhone, is up to you or your business. But where state and local governments in Montana previously had no restrictions on how they could use facial recognition technology, they now have clear and thorough parameters they have to follow.

Second, SB 397 completely bans continuous facial surveillance. It's now flat-out illegal for state and local governments to implement any kind of mass surveillance network using facial recognition technology. It also prevents the government from contracting with private businesses to implement surveillance, preventing loopholes in the law.

Third, it allows the technology to be used to help solve major criminal investigations such as murders and kidnappings, but only with a duly authorized search warrant and with clear limitations. The law requires the government to disclose that it used facial technology in those cases and also requires additional audits and transparency reporting. Finally, SB 397 also creates penalties if the government violates the law, including fines, damages awarded, and even disciplinary action against individual government employees.

We know Montanans value our privacy in the modern technological age because of how we voted in the last election. In the 2021 legislative session, I put a constitutional amendment on the ballot that amended Montana's constitution to explicitly require the government to get a warrant in order to access citizens' electronic data and communications. That amendment passed with more support than any other issue or politician on the ballot in 2022.

Other young lawmakers and I have demonstrated for years now at the state level that we can embrace new technology to improve our lives without having to sacrifice our rights to privacy and due process along the way.

Thanks to our work, Montana is leading the way on these issues. The biggest technological threats to our rights now come from a federal government run by lifelong politicians who don't understand technology and let the federal bureaucracy deep state run amok on surveillance. Congress needs to get its act together, learn from what we've done in Montana, and protect Americans from their own government abusing surveillance technology.

Sen. Ken Bogner, a Republican from Miles City, is the President Pro Tempore of the Montana Senate and a veteran of the United States Marine Corps