In what’s described as a victory for private property rights, Montana will soon become the first state in America to ban public funding to pay for bulk digital data. Gov. Greg Gianforte on May 5 signed Senate Bill 282, which bans law enforcement from purchasing electronic data without a warrant.
Under the new statute, law enforcement can no longer further an investigation by purchasing publicly available, but otherwise private, digital data like geolocation or metadata unless approved by a judge. It will take effect Oct. 1.
Supporters of the legislation call the ability to purchase a private citizen’s digital footprint the “data broker loophole.”
“Just imagine what we’re capable of in the spy world and then the military world with what we can do with all of this information that’s available,” state Rep. Tracy Sharp, R-Polson, said at an April 3 committee hearing. “We need to start putting sideboards on this in order to protect ourselves and our citizens in the future from what government’s going to be able to do with all of this information.”
The final iteration of the bill passed both legislative chambers unanimously.
How does the loophole work?
In an increasingly connected world, it’s become common practice for law enforcement to purchase data tied to devices of a suspect to further their investigation.
One of the most prevalent services used by law enforcement is Fog Data Science. The data and analytics company touts monthly data from 250 million devices available for purchase. In a brochure, the company said it uses its databases to correlate times and geographic locations to assist law enforcement “in solving criminal cases, investigating suspicious activities or identifying pre-incident indicators that can assist in interdiction or mitigate risk.”
Privacy protected
The Electronic Frontier Foundation (EFF), a nonprofit digital rights organization, supported both state and federal efforts to block law enforcement from acquiring an individual’s digital footprint instead of getting a warrant.
“In every state other than Montana, if police want to know where you have been, rather than presenting evidence and sending a warrant signed by a judge to a company like Verizon or Google to get your geolocation data for a particular set of time, they only need to buy that same data from data brokers,” Matthew Guariglia, senior policy analyst at the Electronic Frontier Foundation, said.
The EFF noted that Montana enacted other measures meant to protect individual privacy rights in the digital age. These include limits on facial recognition technology, consumer privacy protections, and language added to the state’s constitution to include digital data as protected under the right to unlawful search and seizure.
