The Right to 'Live Free From Government'? New Hampshire Voters Just Gave It to Themselves.

Privacy concerns have prompted 10 states to add privacy protections in their constitutions.
by | November 7, 2018
New Hampshire state Rep. Neal Kurk, in 2009
New Hampshire state Rep. Neal Kurk, in 2009 (AP/Jim Cole)

SPEED READ:

  • New Hampshire's Question 2 will add "an individual's right to live free from governmental intrusion" into the state's constitution.
  • 10 other states have similar language in their constitutions.
  • The ballot measure was pushed by state Rep. Neal Kurk, one of the nation's staunchest legislative defendants of privacy.
 

Chad Marlow, a privacy lawyer for the American Civil Liberties Union (ACLU), has a ritual.

Each year, at the start of the New Hampshire legislative session, he reads a slew of proposed bills from longtime Republican state Rep. Neal Kurk, one of the nation's most prolific lawmakers on the issue of privacy. Marlow says reading his legislative priorities -- from regulating surveillance drones to challenging government disclosure of voter information -- is "like Christmas" for a civil libertarian like himself.

Kurk isn't seeking another term in Concord, but New Hampshire voters gave him a farewell gift this year.

They overwhelmingly approved Question 2 on the November ballot, which aims to protect Granite State residents' privacy rights. The measure amends the state constitution to say: "An individual's right to live free from governmental intrusion in private or personal information is natural, essential and inherent."

The goal is to ensure that governments get permission before snooping through citizens’ private social media accounts, internet search histories, emails and text messages.

"Without state constitutional protections, privacy is not the Granite State’s default setting," Kurk and Marlow wrote in a recent ACLU blog post. "Rather, it needs to be repeatedly established, protected and defended by the state legislature each time a new surveillance technology or method is established, which is a common occurrence in our modern technological world."

As Kurk and Marlow point out, 10 states -- including Arizona, California, Florida, Illinois, Montana and Washington -- already have similar privacy protections in their constitutions. It’s not surprising that the state that has adopted "Live Free or Die" as its motto would want to join their ranks, and that the new constitutional language was approved with strong bipartisan majorities in the New Hampshire legislature.

But state Rep. Timothy Smith, a Democrat who declined to reveal how he voted in the House's anonymous vote to pass the amendment, said many of his fellow lawmakers were afraid to oppose it for fear of appearing anti-privacy, and because they didn't expect it to pass. He had "serious reservations" about how it's written.

The measure, he said, will "grant a right to privacy in your personal information from the government, but it would provide you absolutely no right to protection whatsoever against somebody stealing a hairbrush out of your trash and doing one of those 23andMe DNA sequence things and publishing the results on the internet."

Smith is also concerned that the amendment’s vague language may lead to frivolous lawsuits against the state.

"It’s not hard to imagine someone trying to sue the government because they don’t think the Department of Motor Vehicles (DMV) has a right to know whether they wear glasses," he said.

Marlow isn’t worried. He’s familiar with the DMV concern but insists that none of the states with existing privacy provisions "are facing a bunch of nearsighted drivers driving around." In other words, he said citizens aren't abusing these protections.

Even some of the amendment's critics expected voters to approve it.

"It’s got good, flowery constitutional language, talking about high-minded principles," said Smith. "Everyone’s gonna love that."

Before the vote, Kurk wasn’t saying much. He made no public statement following news reports about his decision not to seek another term. Reached briefly by phone, the only comment he would make about his career defending privacy was an irritated assertion of his own.

"I'm a private person," he said curtly before ending the call. "I don't need this kind of attention."

For results of the most important ballot measures, click here.

Graham Vyse | Staff Writer