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Voters consider measure to add electronic data privacy to Montana Constitution

Constitutional Amendment 48
Posted at 7:05 AM, Oct 21, 2022

HELENA — When Montana voters look over their ballot this year, there’s likely to be one proposal they haven’t heard much about. There’s been no significant campaign activity for or against Constitutional Amendment 48, or C-48. The measure would change just 11 words in the Montana Constitution, but they’re focused on a big topic: the use of people’s electronic data.

C-48 would specifically add “electronic data and communications” in a list of items protected from unreasonable search and seizure. Supporters say that could include emails, chat messages and much more.

“This would update Montana’s constitution for the 21st century,” said Kendall Cotton, president and CEO of the Frontier Institute, a free-market think tank in Montana.

Currently, Article II, Section 11 of the state constitution reads:

“The people shall be secure in their persons, papers, homes and effects from unreasonable searches and seizures. No warrant to search any place, or seize any person or thing shall issue without describing the place to be searched or the person or thing to be seized, or without probable cause, supported by oath or affirmation reduced to writing.”

C-48 would update that language to:

“The people shall be secure in their persons, papers, electronic data and communications, homes, and effects from unreasonable searches and seizures. No warrant to search any place, to seize any person or thing, or to access electronic data or communications shall issue without describing the place to be searched or the person or thing to be seized, or without probable cause, supported by oath or affirmation reduced to writing."

Cotton said his group proposed this change before the 2021 legislative session, in response to concerns about mass electronic surveillance.

“It seemed like people were very concerned about their privacy, so we started looking into ways that government and lawmakers could send a message to people in Montana that their privacy is a priority,” he said.

He said the Frontier Institute worked closely with Sen. Ken Bogner, R-Miles City, who introduced the proposal in the Legislature. It went through the state Senate 50-0, then passed the House on a 76-23 bipartisan vote – earning well over the 100 yes votes it needed to qualify for the ballot.

In most cases, state law already requires a warrant before government entities can get data off an electronic device. There are exceptions if the owner consents and in certain emergency situations.

Cotton believes it’s still worth adding this specific language to the constitution, to protect against any future changes to the law and to make a point about the importance of securing this data.

“What states can do is they can be proactive,” he said. “We can be the laboratories for democracy, and say, ‘This is how we view our fundamental right to privacy, we view it as including protections for our electronic data and communications online.’”

One of the lawmakers who voted against advancing C-48 was Rep. Bill Mercer, R-Billings, the former U.S. attorney for Montana. He told MTN he understood the idea behind the measure, but didn’t feel it was necessary. He argued the existing laws – and the protection of “papers, homes, and effects” already in the constitution – provide enough protection.

“I’m just not hearing about a circumstance in which there was a piece of litigation that people could point to and say, ‘See, here is a really bad outcome, here is a situation where a search occurred that was deemed to be constitutional given the terms of the Montana constitution that didn’t adequately the electronic privacy interests of the person that was the subject of the search,’” he said.

Mercer said he also had concerns about how the amendment could affect law enforcement operations in “exigent circumstances” – dangerous or urgent situations when courts have recognized officers may sometimes make a search or seizure without a warrant.

During the legislative session, a lobbyist for the Montana Association of Chiefs of Police similarly expressed “soft opposition” to the amendment, saying it could have unintended consequences for law enforcement.

You can find more information on C-48 and LR-131, the two statewide ballot measures on Montana’s ballot, on the Montana Secretary of State’s website.