Montana shield law expanded to forbid government subpoenas of third-party records

Soo Rin Kim | Reporter's Privilege | News | October 22, 2015

With new amendments to the state shield law, journalists in Montana will not have to worry about electronic communications services turning over reporters's records to the government.

House Bill 207, sponsored by Rep. Daniel Zolnikov, "prohibits government bodies from requesting or requiring disclosure of privileged news media information from services that transmit electronic communications."

The bill was signed into law in April and took effect on Oct. 1 as an amendment to the existing Montana shield law, known as the "Media Confidentiality Act."

The old shield law protected journalists from source disclosure subpoenas, but did not address subpoenas to third-party communications service providers that held electronic records, like phone companies and email services. The new amendment was designed to keep the government from demanding this information.

“Technology is running over the Bill of Rights,” said Zolnikov.

Montana Newspaper Association Executive Director Jim Rickman told Great Falls Tribune, "The new law protecting journalists' sources on third-party servers addresses the reality of the digital age we live in."

This Montana shield law marks a distinguishing step for press freedom.

California, Connecticut and Maine shield laws protect journalists by requiring government bodies to notify the media of third-party subpoenas. But these shield laws only provide a “qualified privilege,” meaning the protection can be compromised in certain situations.

Montana’s shield law however, provides an “absolute privilege,” meaning, there are no exceptions to the protection. The new protection against third-party subpoenas in addition to the existing absolute privilege makes Montana’s shield law the strongest in the nation.

Asked about any security concerns for the government, Zolnikov said, “I believe journalists are professionals and they do know their limits.”

“I hope this will lead other states to follow,” Zolnikov said. “If we make this a bigger issue in the state, we can get the ball rolling at the national level.”

While 40 states have shield laws of varying degrees of protection, there is no federal shield law. Attempts to pass a federal shield law in recent years have not been successful, although recent amendments to the Attorney General's guidelines on subpoenaing the news media extended protections to third-party records.