Privacy won at the ballot box on Tuesday when Montana’s C-48 passed. This ballot measure was a legislatively recommended amendment to the state’s constitution that would require a search warrant to access an individual’s data or electronic communications. The passage of this constitutional amendment means Montana joins Michigan and Missouri as the third state to pass constitutional protections for privacy in digital data.
Montana’s election night privacy win shows that, when put to a popular vote, Americans value their privacy interests and are wary of allowing law enforcement broad authority to search and seize electronic information without following appropriate warrant protocols.
Although victories such as these show positive movement in the direction of protecting individual privacy rights, important battles against invasive surveillance technologies continue to confront policy makers and legislatures across the nation.
Cities across the nation have rolled out significant surveillance schemes, with some cities seeking to ensure the government has access to private surveillance systems. In Houston, some businesses are mandated by city ordinance to surveil, with failure to comply resulting in $500 fines per violation.
Companies such as Ring have working relationships with law enforcement, allowing the government to access surveillance of people’s homes. Although this relationship is clearly disclosed on Ring’s web page, it goes without saying that most consumers are not contemplating police accessing this footage when they purchase a product designed to make them feel more secure in their homes.
Additionally, this problem transcends Ring and involves corporate/government contracts at both the state and federal level.
Google, Amazon, Microsoft, Dell, and IBM maintain contractual relationships with the federal law enforcement agencies. The details of the relationship between the government and corporate entities is difficult to uncover because often companies hire subcontractors to fulfill contractual duties. Obtaining the specific details of these contracts is an onerous process, requiring the filing of Freedom of Information Act (FOIA) requests and reading through the particulars of each contract.
The existence of these contractual relationships is not necessarily a problem as the government working with private entities in this manner is not new. However, the technologies used to acquire, store, and disseminate data are becoming significantly more invasive. Facial recognition and other biometric identifiers are growing in popularity and, as more of human life becomes connected to the internet, companies can sell surveillance services to government officials.
Banjo, the now-defunct Utah company, promised to provide law enforcement with “un-siloed” information at “hyper-speed” by analyzing vast amounts of publicly available information on the internet through their AI software. Before the scandal-ridden company went under, Utah’s attorney general was prepared to close a multimillion dollar deal with the tech firm.
The business model of Banjo underscores an important reality. There is an incentive for tech firms to innovate with the best interest of the government, not consumers, in mind. And surveillance sells because it makes government agents’ jobs easier. As AI algorithms become more powerful, this problem will only grow.
Indeed, the hot button issue of Big Tech’s content moderation policies cannot be separated from the blurring lines of corporate and government functions. Ongoing litigation has revealed that upward of one hundred government agents were involved in jawboning private companies into implementing content moderations that favored government ends.
Montana’s privacy victory is a cause for celebration, but for individual rights to prevail, policy makers must continue to craft solutions that undercut the underlying incentives driving corporate and government actors towards solutions that benefit the powerful rather than the public.