While Montana’s constitution already protects citizens from warrantless searches and seizures of their “person, papers, homes and effects,” supporters of the amendment argue that a constitutional change is needed to make sure privacy protections keep up with new technology.
Strengthening Our Right To Be Left Alone
"With these two upcoming opportunities to strengthen privacy protections, Montana remains the last best place to simply be left alone."
People on the Western frontier have long-cherished the freedom wide-open spaces afford and the right to simply be left alone from prying governments and nosy neighbors. But as new frontiers of technology have emerged, so have new threats to these Western values.
Whether it’s emails, location data or apps using facial recognition, much of our personal information is now stored electronically, making it especially susceptible to being caught up in mass data collection.
Thankfully, Montanans have two important opportunities on the horizon to strengthen privacy and preserve our fundamental right to be left alone.
The first of these opportunities will be C-48, a constitutional amendment referred to voters by the 2021 Montana Legislature. C-48 will ask voters this fall to amend the state’s Constitution to explicitly protect electronic data and communications from unreasonable searches and seizures by law enforcement.
Despite being on the cutting edge of efforts to address new threats to privacy over the years, Montana lawmakers have generally taken a reactive approach to new surveillance technology by addressing concerns incrementally in state law. Adding explicit protections for digital data to Montana’s Constitution would flip this dynamic, making privacy protection the default setting for law enforcement without relying on the Legislature to catch up.
If C-48 is approved, Montana would be the first state in the country with digital privacy protections in both the state Constitution and state law.
The second opportunity to strengthen privacy protections will come during the 2023 Montana Legislature, where lawmakers plan to propose a bill to place guardrails on government use of facial recognition technology.
While authoritarian states like China are already using facial recognition to catalog nearly every citizen and enforce dystopic social credit scores, the technology is only now starting to see adoption by governments in the United States. The 2021 Legislature passed HJ 48, creating an interim study to examine the use of facial recognition technology in Montana.
So far, the HJ 48 study has confirmed facial recognition technology is being used by state agencies to assist with criminal investigations and fraud detection. The study has also highlighted a severe lack of legislative oversight when it comes to how government can use the technology, leaving open the potential for China-style abuse of privacy.
On the other hand, HJ 48 has brought to light how facial recognition can be used for good. For instance, Montana’s Unemployment Insurance Division testified that the implementation of a facial recognition system reduced instances of fraudulent claims from 3,200 to near single digits, saving taxpayers thousands as a result.
While some states and cities have taken an all-or-nothing approach to facial recognition, even outright banning the technology in some instances, lawmakers have indicated that Montana aims to chart our own path with balanced reforms.
Senator Ken Bogner has staked out the broad goal for change: “the Legislature must address facial recognition to ensure Montanans can use the technology without sacrificing privacy and rights.”
This approach would allow Montana’s government to take advantage of facial recognition technology’s benefits, helping to make our law enforcement more effective and our state programs more efficient, without threatening the privacy rights we hold dear.
With these two upcoming opportunities to strengthen privacy protections, Montana remains the last best place to simply be left alone.
This column was originally published in Lee Newspapers