Montana’s C-48 would amend the Montana State Constitution to explicitly protect electronic data and communications from unreasonable search and seizure. In effect, the amendment would require law enforcement to obtain a search warrant in order to conduct searches of electronic data or communications. Montana’s C-48 is a legislatively referred constitutional amendment, meaning that the Montana State Legislature voted to put the initiative before Montana voters.
Proponents’ Arguments For
Proponents of C-48 argue that the amendment is necessary to modernize Montana’s laws regarding law enforcement searches and seizures of personal property. The Montana State Constitution currently protects “persons, papers, homes, and effects from unreasonable searches and seizures.”
As digital technology has evolved, it has come to be the home for a lot of our personal and private information, replacing paper documents stored in file drawers or safes. Supporters argue that the government should have to meet the same standards and processes for accessing personal information in digital form as the constitution set out for similar information when it only existed in hard copy.
As State Sen. Ken Bogner argued when the legislature was voting, the amendment:
Senate Bill 203 is about updating Montana’s Constitution to reflect life in the 21st Century and make it explicitly clear that our digital information is protected from unreasonable government searches and seizures. Today, so much of our private lives—financial information, communication with family and friends, medical information, and much, much more—is contained on and transferred electronically among many devices and computer systems. The government should need a warrant before accessing or gathering Montanans electronic data or communications.
Opponents’ Arguments Against
There is no officially published opposition to the amendment. However, some law enforcement officials have expressed concerns. Mark Murphy, representing the Montana Association of Chiefs of Police, said the group’s position on the amendment is “soft opposition.” Murphy said, “What I see in this change is a fairly large opportunity for unintended consequences.”
Brian Thompson of the Montana County Attorneys Association has stated that the amendment would have little practical effect. According to Thompson, current law already protects electronic communications from unreasonable searches and seizures, but he added that clarification is welcome.
Outside of a few notable exceptions, courts in the United States have tended to require warrants for any search of digital content. The legal question around digital data was generated in part when police began using GPS devices to track locations without warrants. And a seminal case, Riley v. California, questioned whether the entire contents of unlocked cell phones were allowed to be searched during the course of an arrest, as police are legally allowed to search the immediate contents of the person during an arrest. The courts have struck down both of these practices as unconstitutional and ruled that police need a warrant to search devices containing digital content because they contain much information that may or may not be relevant to the activity at hand.
Warrants for digital information have become the norm. But there have been court cases as recently as 2018 in which location tracking without a warrant was ruled unconstitutional, exposing the fact that these practices may still occur despite claims to the contrary.
As web technology develops and people routinely share information with third-party providers, the question becomes whether that data is public and, if it is not, how a warrant should be written and executed. Police argue, in particular, that location data should be public, claiming it is the “network equivalent of public observation” which is not protected by warrant. Similar questions may arise around social media and other forms of data.
Should the warrant be written to obtain all of the information, then filtered and sorted by the prosecution manually despite the extensive manpower required? Do digital searches for keywords represent the completion of the search? Should the police search the hardware such as servers and computers, which opens up possibilities of “in plain sight” expansion of their interest? Or should third-party providers with a narrow mandate, and no obligation to report other information they might see, prepare data, and then send files to the police? Does a warrant to search a house include all of the devices in the home or how specific does a warrant in the digital realm need to be? Does clicking on a police-generated URL advertising illegal activity justify a warrant?
These questions and others will have to be continually considered by courts and legislators. What is certain is that police will continually push to have access to more data. Given the importance of privacy, it is preferable to err on the side of protecting individuals’ privacy from searches and using practice in the real world to work out what very limited exceptions may be constitutional.