Maybe it will make “Jeopardy!” soon: “This state now offers the most protection for a reporter’s electronic records.”
Is it a liberal bastion like New York, California or Connecticut?
As of Thursday, it’s Montana.
Indeed, a libertarian Republican state legislator was central to pushing through the first state law anywhere that mandates the media be given notice of third party subpoenas.
“Working on privacy legislation made me question how the mass collection of digital communications could infringe on our basic rights,” said State Rep. Daniel Zolnikov in an email exchange.
“I realized the link between a free press and a free society are closely related. Since digital communications aren’t considered private, this meant all whistleblowers could be easily found and persecuted. Limiting the government’s ability to sort through the media’s email and calls was key to maintain the First Amendment’s freedom of the press.”
The Montana law ends a loophole in the state’s shield law by barring government agencies from getting to journalists’ confidential sources through third-party communications providers.
Thus, a government department couldn’t compel a reporter to give up sources but it could force the likes of Facebook and Google to divulge emails and other types of communications.
“This is a very symbolic piece of legislation,” said Zolnikov, a business major from the University of Montana whose district consists of a section of Billings. “States can, and should, pass laws protecting the press, especially in this era of technology. Although it won’t make it at the federal level at the moment, I am a firm believer that state laws force action at the federal level, and we all know that a national reporters privilege law would be a major win.”
There appear to be three other laws that provide similar protection, meaning that they require the media be given notice of third party subpoenas, although not directly barring the subpoenas themselves.
The difference now in Montana comes from the fact that its law gives an absolute privilege for the protection of sources. So now that covers third-party records. California, Connecticut and Maine have what lawyers would know as “qualified” privileges in their shield laws, which explicitly allow it to be used against third-party subpoenas by requiring notice to the media party.
“While a few shield laws, like those of Connecticut, Maine and California, explicitly protect journalists’ third-party records with a qualified privilege — one that can be overcome under certain circumstances — Montana seems to be the first to extend an absolute privilege to these records,” said Gregg Leslie, legal defense director at the Reporters Committee for Freedom of the Press in Washington, D.C.
“This is an essential level of protection that should be incorporated into more laws.”
And when it came to the legislative politics, they were pretty straightforward, Zolnikov said.
“A few legislators questioned the importance of protecting the press when they felt a bias was obvious in Montana political reporting. But this was easy to refute when I explained this strengthens our First Amendment rights.”
