On its face, this seems like an earnest attempt by a state to legislate limits to access of cellphone metadata. Whether it'll be effective in reining in federal authority over the states in this matter is unclear.

That said: this is definitely a positive development, which is rare these days concerning our rapidly accelerating surveillance state. I'd say the state of Montana deserves props for proposing laws that attempt to close the widening gap between technological advancements, corporate influence and corresponding rule of law. When the legislation process constantly finds itself one or two steps behind corporate development of technology, the corporations always team up with federal law enforcement (read: the executive branch) to take advantage of the opportunity to garner more power over the people.

The legislation is centered on the constitutional concept of probable cause to obtain search warrants before using cellphone metadata to establish a suspect's location.

That kind of “metadata” can be incredibly valuable, as law enforcement agencies discovered long before the rest of us. The cellphones we carry everywhere establish a clear log of our daily travels and can go a long way in telling the story of our lives.

In recognition of that fact, the Montana Legislature this spring passed a location information privacy bill, which requires a search warrant for location information recorded by an “electronic device.” There are exceptions to the warrant requirement, including when the cellphone is reported stolen or to respond to a cellphone user’s emergency call.

The question is: will this "get-back-to-the-constitution" mindset spread to other states? We need a groundswell across the country.

From the "Technology" section of the New York Times:

Steve Bullock, the governor of Montana, signed it into law on May 6. The American Civil Liberties Union, which tracks cellphone tracking laws across the country, called it the first such state legislation.

In so doing, Montana stole California’s thunder: that state’s Legislature had passed a warrant law for location tracking last year, but Gov. Jerry Brown vetoed it, saying that it did not “strike the right balance” between the needs of citizens and law enforcement.

Is this the work of the same "Governor Moonbeam" I fondly remember from the 'seventies? Or is it the invisible hand of Silicon Valley exhibiting its soft-power over the state?

To varied success, more than a dozen other states have shown enthusiasm for such legislation. For example, in Maine a location information privacy bill went to the governor’s desk last Wednesday.

But there have been failures and some states still have pending legislation:

In Texas, a similar bill failed to muster enough votes in the Statehouse. The Massachusetts Legislature is scheduled to hold a hearing next Tuesday on a measure that would require search warrants for location records as well as content of cellphone communications.
To no surprise, D.C. has been slow to legislatively catch up (by design) to a technology-crazed Silicon Valley. After all, post-congress critter careers are made through corporate influence. Politicians can't be expected to climb the ladder of success without extra-added incentive. Both the House and Senate introduced anemic bills and the courts have produced a mixed bag of rulings. But most of them have acquiesced to the executive branch's "interpretations."

So far, * crickets * from the SCOTUS.

The Supreme Court has yet to weigh in on the legal limits of location tracking using a cellphone, though it ruled in a landmark 2012 case that the police must obtain a search warrant before placing a GPS tracking device on a suspect’s vehicle.
The Times, however, fails to include the reason why the SCOTUS hasn't weighed in yet: the lower courts -- including the Shrub-packed D.C. Court of Appeals -- have yet to grant 'standing' to plaintiffs.

But perhaps that will change since the Snowden revelations. Currently, cases filed by EFF, EPIC and the ACLU are winding their way through the judicial system.

Wish 'em all luck and show your support if so inclined.

Originally posted to markthshark on Thu Jul 04, 2013 at 02:21 AM PDT.

Also republished by Montana Kossaks.

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