Montana Public Radio

Bill Seeks Warrant Requirement For Searches Of Consumer DNA Databases

Apr 9, 2021

HELENA — A bill that would require investigators to obtain a warrant to search consumer DNA databases like 23andMe or Ancestry.com drew criticism from law enforcement representatives during a hearing in the Senate Judiciary Committee Friday. They say it would make it harder to solve cold cases.

House Bill 602, sponsored by Rep. Mallerie Stromswold, R-Billings, passed the House of Representatives on a 97-2 vote in March and is now being considered in the Senate.

The bill drew support from civil rights and liberty-focused groups that said it would bolster Montanans’ privacy protections in the digital age. Patrick Webb spoke in support of the bill on behalf of Libertarian political group Americans for Prosperity.

“Montanans have spoken emphatically time and time again that we cherish the right to privacy,” Webb said. “And that is something we have ingrained in our own Montana constitution.”

The bill cleared the House just before a key deadline that saw hundreds of bills scheduled for votes over a period of two days. Some proponents of the bill said that deadline led to confusion about the bill’s purpose, resulting in an amendment that “gutted” the intent of the bill, according to Webb.

The amendment put on the bill in the House of Representatives states law enforcement must receive a warrant to search a consumer DNA database unless the consumer “waived” their right to privacy with the company who operates the database. Since most consumers do so to some degree by agreeing to a company’s terms of service, Webb argued the bill would no longer protect consumer’s private information against government encroachment.

“Restraints on government need to be a separate discussion than what individual contractual agreements are,” Webb said. 

Opponents representing law enforcement advocacy groups said the amendment was a welcome addition, but still opposed the bill for the restrictions it would place on investigations.

Mark Murphy, representing the Montana Association of Chiefs of Police, said the bill would make solving cold cases through DNA evidence harder, as judges would be unlikely to find probable cause to search a DNA database.

“All of the bills that I’ve testified against are restrictions on government,” Murphy said. “Government is not the enemy here, folks.”

Murphy said DNA database companies and big tech companies already require customers to waive some privacy rights when they use their services, while he said government entities in Montana have always been careful to respect privacy boundaries. Murphy said the only time he believes the state of Montana conducted a search of a DNA database resulted in the solving of the cold case murder of a Missoula child from 1974.

“These databases are in the privacy invasion business. When you sign up, you have to agree to terms of service. That’s a waiver of privacy,” Murphy said. 

Stromswold told the committee that she didn’t mind if the bill moved forward with the House amendment, but said she would appreciate it if the committee voted to remove it. 

The next stop for the bill will be a debate in the full Senate if it’s passed out of committee.

Austin Amestoy is a reporter with the UM Legislative News Service, a partnership of the University of Montana School of Journalism, the Montana Broadcasters Association, the Montana Newspaper Association and the Greater Montana Foundation. He can be reached at austin.amestoy@umontana.edu.