By Pam Greenberg
Among the more than 150 statewide ballot measures covering topics from transportation to elections to health care, one may have fallen under the radar. New Hampshire voters on Tuesday approved amending the state constitution to establish a right to privacy.
The amendment, referred to the voters by the New Hampshire legislature and winning 81 percent approval, will add just 22 words to the state’s constitution: “Right to Privacy: An individual's right to live free from governmental intrusion in private or personal information is natural, essential, and inherent.”
Only 10 other states—Alaska, Arizona, California, Florida, Hawaii, Illinois, Louisiana, Montana, South Carolina and Washington—have similar provisions expressly referring to a right to privacy.
In some of these states, the provisions are similar to the Fourth Amendment of the U.S. Constitution, except with specific references to privacy, such as in Illinois: “The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches, seizures and invasions of privacy shall not be violated.” [emphasis added].
The other state constitutions have separate provisions focused on privacy:
- Alaska: “The right of the people to privacy is recognized and shall not be infringed.”
- California: “All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.”
- Montana: “The right of individual privacy is essential to the well-being of a free society and shall not be infringed without the showing of a compelling state interest.”
The rights to privacy in Arizona and Washington were adopted in 1910 and 1889, respectively. The other eight states with constitutional privacy rights were adopted between 1968 and 1974.
Privacy ballot measures have been rare since then. In 2014, Missouri voters approved Amendment 9 (art. I, § 15), which, although not mentioning privacy, gives explicit protection from unreasonable searches and seizures for electronic communications or data, such as that found on cell phones and other electronic devices.
Wyoming lawmakers serving on a legislative Task Force on Digital Information Privacy in early 2015 drafted a Right of Privacy Amendment (15LSO-0066) for legislative approval to put before the voters, but the measure was defeated in the Wyoming Senate.
Constitutional privacy amendments provide a broad overlay of protection, while more common statutory protections are fragmented and target specific areas, such as protection of health information.
The European Union’s General Data Protection Regulation (GDPR) and California’s sweeping Consumer Privacy Act of 2018 (and its amendments), however, will likely mean we’ll be hearing more about privacy, if not through constitutional amendments, in legislation and statutes.
Pam Greenberg follows cybersecurity issues for NCSL and is liaison to the National Association of Legislative Information Technology.