Montana state Rep. Daniel Zolnikov discusses his legislation protecting journalists' privacy against demands for their electronic communication records.
Frank LoMonte: Hi everyone and welcome to another edition of the Student Press Law Center’s monthly podcast, a rundown on legal developments of interest to those working in student media. I’m Frank LoMonte, executive director of the Student Press Law Center. The SPLC is an advocate for the independence of student journalists and provides legal assistance and research in support of those working in student media across the country. You can connect with us through our website, splc.org, and send us questions you might have through email at firstname.lastname@example.org.
Well, shockwaves went through the national news media when in 2013, it was disclosed that the federal Justice Department had clandestinely used subpoenas to get access to the telephone records of journalists working for Fox News and for the Associated Press who were believed to have received leaked information from federal sources. The Justice Department, after this disclosure came to light, agreed to revise and revisit its guidelines and has in fact tightened up some of its standards for when it will seek access to the phone records or email records of journalists in conducting investigations. But those policies affect only federal law enforcement, and not state prosecutors working at the state level. Fortunately there are privacy advocates who are working at the state level to try to tighten up the standards for prosecutors and police going after the records of journalists that might give away the identity of confidential sources.
We have one of those advocates here today — Rep. Daniel Zolnikov of Billings, Montana is a Republican who represents Montana’s 45th House District. He’s been a very outspoken advocate for digital privacy on a lot of causes and we’re so happy to have him join us today on the SPLC podcast to talk about his recently-enacted House Bill 207 in Montana that affords an extra measure of privacy protection for journalists and their sources. Rep. Zolnikov, thanks for joining us.
Zolnikov: Yeah, thank you for having me.
LoMonte: Well, I guess if you don’t mind, just first start off a little bit by introducing yourself and how it was that you came to be interested in this issue.
Zolnikov: Okay. So there’s a little bit going backwards — I got elected November 2012 at the age of 25 into Montana’s legislature so I was definitely one of the younger ones. I have an information system and marketing background so I kind of understand how social networks work how a lot of our digital communications work. It’s more second nature to me than a lot of the typical legislators who are usually a little older than in their 20s.
Zolnikov: I was lucky enough to have a friend who worked in the world of hacking. He was what they consider a good hacker. He informed me about privacy legislation and how there’s really no policy in place, and I could work on some legislation so I did so in my first session. Most of it failed. It got me into some controversial positions but in the end, I passed one little bill. This was early 2013 when it passed. I passed the bill, it required a search warrant for cell phone location information. No one cared, no signing ceremony, nothing happened until June 5 and 6. I started getting phone calls — people were like, Uh, you passed this bill before anyone else. I said, I guess so. I don’t know, we passed this bill in Montana! It was a shocker to me, and it was all because of Edward Snowden’s revelations on the NSA that it was realized that this was apparently a very important bill.
The bill would have protected or did protect people from these things called stingrays which we learned existed a few months and years later, where your information and location was being collected. So we were a little proactive on what could possibly happen, even though it was already happening. The interesting thing of all this is in the next year, this legislation got so much attention in the news, media, everywhere, that it started passing in other states. Then there was a Supreme Court case in California that — I can’t remember the name of it, it evades me right now, but it basically made that law — the same concept of the law through the Supreme Court case — the law of the land. Everybody’s location information was protected until a warrant was obtained. Very interesting.
With that happening, I was thinking. I came back to my next session in early 2015 and instead of having a few bills, I had a lot of legislation that I worked on with national groups to better protect privacy. The one on the press though, that I’m here to talk about, was more my creation because in my two years prior, I got to deal with the press quite a bit. I learned about Snowden and how Glenn Greenwald almost didn’t hear about Snowden because Snowden, when he was first talking to Glenn, was like, I need you to encrypt all this stuff, I need you to run these programs, and then I’ll start sending stuff over. And Glenn just ignored it because Snowden was so concerned. So taking that realization into play, the lack of protection for the journalists meant that anybody connecting to them could be found out through their digital communications.
You go back 30 years ago, I walk up to you and tell you what’s going on and give you some big information. Well, now if any agency of the government wants to find that out, they have to walk up and ask you, the journalist, and the journalist can say no. In the digital world, if I email you or call you or text you, they can say well the journalist isn’t giving up the information of the source, we’re just going to look up who the journalist has been talking to and find out who that source is. Now you have a disincentive for whistleblowers to talk to the press.
LoMonte: We should add that Montana, like just about every state in the country, has a reporter’s privilege. Their privilege is memorialized and statued in Montana law. Their privilege, even though it’s phrased as reporter’s privilege, is really more to protect the safety of sources than it is to protect journalists, because journalists are not the people who would lose their jobs over leaks. It’s the source that is at risk of losing his or her job or even potentially being prosecuted for blowing the whistle, so these really are more properly thought of as being source protection or whistle blower protection bills. Your legislation House Bill 207 builds upon the existing reporter's privilege that was already in Montana law.
Zolnikov: Exactly. A lot of states have these laws but I don’t think many, I’m not sure if any actually, have it covering digital communications, which is the next level, especially since we now know all our phone calls, emails, texts, Snapchats are all being saved. That means there’s a record and there better be some laws defining certain protections, especially for the communications of journalists, because I don’t want to end up in a state that’s more similar to North Korea than the United States.
LoMonte: Well and the reporter’s privilege typically, as these bills date back to the 60s and 70s, has protected journalists from direct intrusions on their privacy. It protects journalists against being searched or questioned by law enforcement to give up their confidential information but of course at the time these bills were initially written, nobody thought of the possibility of an electronic intermediary like a Gmail or an AOL or some other custodian of your electronic data might in fact be subpoenaed, potentially without your knowledge. That’s what became so frightening when it came to light that the Justice Department was using these third party intermediaries in lieu of confronting the journalist directly, knowing there would be a reporter's privilege objection.
Zolnikov: Exactly. And to add one thing about using third party communication such as Gmail is that the third party doctrine states indirectly that you have no expectation of privacy. So me emailing you means that I have lost all expectation of privacy, so those shield laws may not even be protecting the journalist because there’s no longer any expectation of privacy in that communication.
LoMonte: What House Bill 207 does is simply add to the existing reporter's privilege the term “electronic communication service,” and it says that neither a judicial body or a legislative body or any other government authority can go to a provider of electronic communication service to try to get at the information from a journalist that would otherwise be privileged if it was demanded directly from journalists. So in effect, it patches a digitial hole that technology has poked into the reporter's privilege.
Zolnikov: Yeah, exactly. So the next question is, what is the big deal of just Montana passing this, since we know a lot of the abuses have been and continue to be at the federal level. The thing I learned my first session with my one little privacy bill is that if people know about it, it will be replicated. If you build it, they will come kind of concept. I focus on a lot of precedents that aren’t passing Congress that if we can prove work in my state — that some people still think is part of Canada, we’re all the way up in the Northwest here — if we can focus on passing this legislation here, we can prove it works, and then maybe other states will start passing it. And you know what? Congress doesn’t, hasn’t really been moving too fast lately and these aren’t their most exciting issues so if we bring it up at the ground level, hopefully they’ll be more incentivized to act. The interesting thing is with the bill protecting the sources of the press, it was not really — I thought it would be a more interesting topic than it was picked up as. We have set the precedent but I guess it’s like, we started a little grass fire but it hasn’t taken ablaze yet. And if it doesn’t, that’s okay, we still have the precedent, but it won’t really incentivize any other legislatures to ask. So that’s kind of the funny point I’m at right now.
LoMonte: Well for those listening to us today with access to an editorial page, this is a valuable potential tool to help protect journalists’ confidences and something that college journalists might want to think about using to use their editorial page to advocate in their own state. It certainly is a concern that as state prosecutors are getting more and more technologically sophisticated as the Justice Department already is today, that they may begin trying to use these digital inroads to obtain confidential information that they would otherwise be prohibited from using under the reporter's privilege.
Let me ask you this. We certainly think of Montana as being a state that is fairly characterized as being a law and order state. Often when you enact reporter's privilege statutes or try to broaden the scope of reporter's privilege, you get pushback from law enforcement. You hear from police and prosecutors that you’re going to take away a weapon from their arsenal and you’re going to make it harder to arrest criminals and tougher to put them away. Did you hear that in Montana? Was that an objection you had to confront and overcome?
Zolnikov: I had to confront that on almost every single piece of legislation I brought forth. I had a really, really big one that would have required notification if your digital communications is read. Because if someone is reading your email, you may never know it so what we want is once you’re done with the case, they’ll let you know. Since they then know they have to contact you, they might be more careful with what they read and for what reasons they read them. That was a big one. I sounded like I would have basically let every criminal be free if that bill would have passed. I had probably five or six similar types of legislation — this one, since I think affected the press, was not spoken about like that. Because if it affects the press, I don’t think the opposition really wants to be on the record with the press watching what’s going to happen with this piece of legislation. I think that’s what happened with this bill. This one was more lock-and-loaded. And it was pretty easy to pass because it was common sense.
LoMonte: Have you actually experienced a case in Montana that alarmed you, or was this more a precautionary measure?
Zolnikov: No this was more of a national level. But I’m not a national politician so I figured that the idea of setting precedents is all I can do to hopefully set a bigger stage on some of these issues. That’s where I was coming from. The other thing is that I don’t believe, and you can correct me on this, is I don’t think there’s a national law passed. I know that they’ve tried and I know that there are people working on it but it’s basically been considered dead every time they try to pass it. It just doesn’t move forward.
LoMonte: Right. The reporter’s privilege has been stuck in Congress for decades now. It has gotten close a number of times but it has never made it through and partially because objections from law enforcement agencies — actually, largely because federal law enforcement contends that to take journalists’ confidences off the record potentially ties their hands in sensitive national security and terrorist investigations. There have been many attempts over the years at fashioning compromise language but one of the many hangups nationally has been to define who is a journalist, who is entitled to invoke the protection of reporters privilege.
And by the way, I should say that in Montana, the reporter's privilege is defined (as) any newspaper, magazine, news agency, news service, radio or television service and so on. So Montana is certainly one of those where a student journalist ought to be able to claim the protection of the privilege just as a professional could. There are a few states, Texas is one, Florida is one, where the entitlement to the privilege is based on earning a salary to that privilege but Montana is not one of those states. So certainly a person working at the student newspaper at Montana or Montana State or one of the universities would be entitled to claim this privilege, just as would a person working for a professional salary. That’s a distinction that students should be aware of and should know that in most states, they do have the benefit of the full reporter's privilege if they are asked to give over confidential information.
Let me just ask, this is sort of the ultimate softball question. The people who are listening to us are largely going to be people working in journalism who don’t need any convincing at all. But certainly most of the people who you were dealing with as colleagues in the legislature are not journalists. And they’re not people who perhaps have a great deal of familiarity with or affection for journalism. So how do you make the case to those people that this issue should matter to them and journalists’ ability to protect their confidences is important to the rest of us?
Zolnikov: So one of the most interesting things about this bill was as a Republican, it seems like the Republicans tend to be less excited sometimes — there’s always the concept of media bias or we think the media’s against us or we think the media’s on that, and so there’s not always the most excitement to take action. So that was one of the first things I ran against — well why? Look at any other country and tell us how bad our situation is, and tell me this isn’t worth protecting. Usually then once I busted out that this is a very basic First Amendment freedom, then everybody was on board. It wasn’t the fear of criminals or anything like that, it was just like, why? Why is this important?
If you don’t have a free press, you don’t get a story that needs to be broken. As politicians, we always have stories that come out against us or for us or with us, however you want to put it. We had to put those biases aside and say, this isn’t about the story that you got last week because you said something wrong and you think the media is out to get you. This is a basic, fundamental Bill of Rights protection.
LoMonte: Well, I want to thank you for joining us today. This is Rep. Daniel Zolnikov of Montana’s 45th House District in Billings. Go ahead and give everybody — I know that you’re active on social media. How can people connect with you on Twitter if they want to participate in this conversation or maybe share some ideas about legislation?
Zolnikov: So my twitter is @DanielZolnikov my facebook is Facebook.com/DanielZolnikov, my email is Daniel.Zolnikov@gmail.com, my website is DanielZolnikov.com. I made it as easy as possible to basically find me if you need me. Most bill ideas aren’t mine, I think this one was a more unique one. I’m always open to hear about it. If anybody wants to ask questions or hear about it, contact me at anytime. I’m literally probably one of the easiest people to get in touch with.
LoMonte: Well, thanks so much for making yourself available to talk to us today, and we look forward to following what you’ll propose next in Montana in the way of privacy legislation.
If you as a student or an editor have a question about your own privacy rights, you can contact the SPLC with our hotline, that’s area code (202) 785-5450. You can email us through email@example.com. We hope you’ll follow us on social media, that’s just @SPLC on twitter and of course, tune in every month to the SPLC podcast on changes in the law that might affect your rights. Thanks for listening.