In May, Montana adopted a new statute that limits government access to the contents of electronic communications stored by service providers. EFF applauds this new privacy safeguard. We thank the Governor for cutting two flawed terms concerning the level of judicial review and records stored abroad, as we requested in a letter with the Center for Democracy & Technology.
Unfortunately, the new Montana law also allows the government to prevent providers from notifying their customers of records demands. Much like federal law that authorizes gags on service providers, this provision violates the First Amendment on its face.
What Montana Got Right
Service providers maintain an ever-growing volume of our highly private digital content. If government wants to seize this content from the providers, it should first get a search warrant from a court based on probable cause of crime. In the watershed Warshak decision in 2010, the U.S. Court of Appeals for the Sixth Circuit held that the Fourth Amendment requires a warrant in these circumstances. For many years, EFF and other privacy advocates have asked legislators to codify this critical standard. We succeeded in California. Congress remains a work in progress.
The bill that the Montana Legislature initially sent its Governor was significantly less protective than Warshak. Specifically, it would have allowed government to seize digital content from service providers based either on a court warrant, or on “an investigative subpoena,” which in Montana can be issued on a lesser standard than probable cause.
EFF and CDT sent the Governor a letter seeking an amendatory veto of this provision. The Governor issued such a veto, requiring a court finding of probable cause for either a warrant or an investigative subpoena. The Legislature then enacted this change.
The Governor also fixed a second problem that we raised. The original bill would have required service providers to turn over digital content “regardless of where the information is held.” In other words, a Montana warrant would purportedly empower police to seize digital content stored outside the United States, including the content of foreign persons living in foreign countries.
EFF and CDT objected that a comparable rule by a foreign country would intrude on the digital liberties of U.S. persons. The Governor vetoed this problematic extraterritoriality clause, and the Legislature enacted the statute without it. We hope other states and Congress will follow this lead.
Montana, Meet Microsoft v. DOJ
Unfortunately, the Montana law also replicates a serious constitutional flaw in federal law and promises to violate service providers’ First Amendment rights. The law allows Montana authorities to ask a court to gag providers and prevent them from informing users that their data has been turned over. The wording of this provision is quite similar to a gag order provision in the federal Stored Communications Act, 18 U.S.C. § 2705; both laws allow the government to get a gag based on the assertion that notice to the user might interfere with an investigation or cause other harms. However, a federal court recently allowed a First Amendment challenge to Section 2705 by Microsoft to proceed. The court found that Microsoft had plausibly argued that Section 2705 violates the First Amendment because it does not require the government to demonstrate that a gag is truly necessary. If anything, the Montana law is even weaker on this ground because it requires only that the government claim that notification of a user “may” cause a specific harm, where Section 2705 requires that harm “will” result.
In light of the Microsoft case, the Montana gag order provision may be vulnerable to a constitutional challenge, and EFF will be keeping a close eye on it. As always, we’re happy to hear from anyone who might need our assistance in this regard.