The Montana Privacy Act - an update from Rep. Schwaderer

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Subhead: State Legislature needs to lead in new era of privacy concerns.

By Representative Nicholas R. Schwaderer

In an era of government surveillance, Montana stands out as a state that respects privacy and is dubious of the federal government tracking its citizens.

In 2009, Montana prohibited the use of automatic law enforcement cameras affixed to stop lights. Similarly, the State also refused to comply with Federal Real ID laws. To quote a certain former Montana Governor:

ďMontana will not agree to share its citizensí personal and private information through a national database . . . Montana is in no mood at all for another heavy-handed play by the federal government, such as what transpired in 2008 when the homeland security director threatened to prevent Montanans from boarding an airplane unless we complied with the

REAL ID act. We refused, and will refuse again.Ē

In 2013 the Legislature and Governor were able to come together passing laws requiring a warrant for GPS phone tracking and drone surveillance as well as requiring that data (including SSNís) submitted in concealed weapons permit applications remain confidential.

This teamwork approach to pioneering new privacy legislation and protecting Constitutional rights through statute has benefited all Montanans.

Shortly after the 2013 session we discovered that the need to actively fight for privacy from surveillance is more critical than ever. In recent days an entire business (Lavabit) had to completely close up shop because it offered Americans what they already should expect - private correspondence without an immediate open door to the federal government. Skype, Google, Outlook, Facebook, Apple and Microsoft have also been compromised. How the States and the people react to these revelations will lay the foundation for the state of our rights and privacy decades from now.

In 2015, or perhaps sooner in an emergency privacy special session, Montana will have to step up to the plate and offer quality statutes to advance the data privacy rights of the citizen in relation to its government. This legislation will have to achieve two tasks:

A. Act as model law. Showing how a government ought to interact with its citizens and their data. This tip of the spear approach gives room for other states to follow.

B. Give legitimacy to the pro-privacy movement and send a clear message to Congress that the good folks of Montana do not endorse Unconstitutional surveillance of innocent American citizens without warrant or due process.

To accomplish this, legislators will have to propose and pass a comprehensive package using the tools at our disposal. Fundamental reforms could include the following:

1. Statutory standards for collection, protection and encryption of state held data; requiring that contractors and subcontractors comply and prohibit the sale of data.

2. Requirements that law enforcement may not access or request access to an individualís email or social networking account without a warrant.

3. Statutory protections against internet and digital communication censorship by administrative rule.

4. Require disclosure to citizens when the Federal Govít requests access to state held data on the citizen. Further, require disclosure to citizens when and how often personal data held by the state is shared with the Federal Govít.

5. Data privacy bill of rights State Constitutional Amendment; aimed at protecting the data privacy of individuals from State, County and Local Governments and all State, County and

Local Government agents. Clarify and reinforce due process.

6. Resolution demanding Congress defund XKeyscore, telephone metadata monitoring and storage, and PRISM programs under the NSA. Further, demand that portions of the

PATRIOT ACT used to justify secret rubber-stamp courts and unconstitutional laws be repealed.

7. Press protections: Members of the press in Montana who are reporting on Government affairs, threatened by the Federal Government due to the nature of their reporting, will not have their person or property captured, detained, converted, seized or surveilled with any assistance from the State of Montana or lower levels of local government in the State of

Montana unless a warrant is issued.

For concerned Montanans, this is a key time to be heard on this issue. With elections next year and campaigns starting as early as January 2014, now is the time to ask your legislator whether they will stand with Montana and stand against unconstitutional surveillance and for data privacy. Find your Representative or Senator at leg.mt.gov.

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