Balancing Privacy Interests and Investigatory Interests Legislative Analysis: House Bill 147, Daniel Zolnikov, R (HD 45)

In Montana, investigation of information held on personal electronic devices is conducted through the use of “investigative subpoenas.” Montana's Constitution affords citizens broader protection of their right to privacy than does the federal Constitution. In general, infringement on privacy requires a “compelling state interest.” House Bill 147 (H.R. 147) of the 65th Montana Legislative Session seeks to heighten the privacy rights of Montanans regarding electronic devices. The bill is carried by third-termer Daniel Zolnikov (R) of House District 45 in Billings, whose sponsorships generally tend to promote privacy legislation and policy. H.R. 147 would require search warrants for government entities to access data on electronic devices, rather than investigative subpoenas, on which the State currently relies.

The bill allows for the same judicially-recognized exceptions to warrant requirements, and specifies exceptions for informed, affirmative consent, voluntarily disclosed data, life-threatening situations, or emergencies. At first blush, it is difficult to distinguish search warrants from investigative subpoenas, and what they mean for Montanans who increasingly depend on various electronic devices for safekeeping personal information.