Montana voters will see two statewide issues on the ballot this fall, including one that seeks to boost legal protections for electronic data.
Proponents of Constitutional Amendment 48 call it a “straightforward” change to the state Constitution. The amendment would add “electronic data and communications” to the list of things protected by the state Constitution from unreasonable searches and seizures by law enforcement.
But some legal experts say it’s unclear if the amendment would change anything about the way electronic data is already protected in Montana.
Republican Sen. Kenneth Bogner of Miles City sponsored the bill that put the amendment on the ballot. Bogner says he took inspiration from Michigan, which is one of two other states in the nation to add data to constitutional search and seizure protections.
“And I thought, ‘Perfect. We need to do that in Montana,‘” Bogner said. “Everyone’s concerned about what, or who, is able to access their data.”
While Bogner says the protections should be written into the state Constitution, professor Andrew King-Ries at the University of Montana’s Blewett School of Law says state and federal court precedents already provide much of that protection. He pointed to two recent U.S. Supreme Court decisions.
The court’s 2014 ruling in Riley v. California required police to obtain a warrant to search a person’s cell phone for evidence of a possible crime. Then in 2018, the justices said a warrant is required to obtain a person’s location data from cell service providers.
A law passed by the Montana Legislature in 2021 also covers some of the same ground. The law raised the bar for law enforcement searches of personal data held by third parties like Google, Facebook and Apple. Now, police must have a search warrant to request any user data held by companies.
King-Ries teaches criminal law and procedure at the UM law school.
“When I’m adding up the U.S. Supreme Court decisions and the Montana Legislature’s actions last legislative session, it feels like this may not be a vital change,” King-Ries said.
Rep. Katie Sullivan, a Missoula Democrat, sponsored the Legislature’s third-party data protection bill last session. She says she had to walk a “tightrope” to balance Montanans’ need for privacy protections with concerns from police that the bill would impact investigations.
“It is hard. It’s not cut and dry; it’s not easy," Sullivan said. "But, when we all get together during the session, this is something we can hash out when everyone gets together in a room."
Sullivan’s bill and Bogner’s proposed constitutional amendment both passed the Legislature in bipartisan fashion. Each cleared the Senate unanimously, and neither garnered more than 25 “no” votes in the 100-member House of Representatives.
But one statewide law enforcement organization says it still has concerns about Constitutional Amendment 48’s potential impacts on policing efforts.
The Montana Association of Chiefs of Police came out in tentative opposition of the amendment when it was still in the Legislature. Polson Police Chief Wade Nash leads the organization and said its position hasn’t changed now that the proposal is in front of voters. He called the amendment’s language “vague,” saying he’s worried it could leave police open to frivolous lawsuits or put up barriers to investigating internet crimes against children.
“When it comes to handcuffing us to the point we can’t do our job and we can’t hold people accountable for their actions against people, then I have an issue with it,” Nash said.
Sen. Bogner says he listened to those concerns during the legislative session, and since then he hasn’t heard anything but support for the amendment. He also says he’s aware the amendment “probably” won’t change Montana’s data protection landscape.
“To me, ‘probably,’ isn’t good enough,” Bogner said. “I want to know 100% that my electronic data and communications is protected, and that’s what this does.”
Montana voters willsee the amendment labeled as “C-48" on their ballots. The amendment requires a simple majority to pass and change the state’s Constitution.
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