New Hampshire Could Add a Constitutional “Right to Live Free” From Gov’t Privacy Intrusions

What the Referendum Does

Question 2 would amend the New Hampshire Constitution to add language stating that “An individual's right to live free from governmental intrusion in private or personal information is natural, essential, and inherent."

If passed, this amendment would change how courts balance the government’s interest in gaining access to personal information against the nature and degree of intrusion on an individual’s privacy rights. It’d require the government to show a compelling state interest in obtaining access to personal and private information before a court would order such access.

In Favor

The New Hampshire state constitution doesn’t explicitly address information privacy. In the digital age, with information readily available, there’s a need for the constitution to explicitly name informational privacy and protect it. To the extent that this amendment prompts increased lawsuits, those cases would further define individual privacy rights.

Opposed

The proposed wording in this amendment is too broad and vague, and would likely lead to problems for law enforcement and public safety. It could affect driver’s license applications, school recordkeeping of children's vaccination records, and the information on prescriptions kept by the NH Comprehensive Health Care Information System. It’d also likely produce an increase in lawsuits, clogging up the courts with frivolous suits.

In-Depth

University of New Hampshire School of Law professor Albert Scherr, who helped State Rep. Neil Kurk (R-Hillsborough 2) draft Question 2’s language, explains that it “gives a status to information privacy and the expectation of privacy one should have in their personal information,” and that it’s needed because the New Hampshire constitution doesn’t have any articles directly taking on information privacy.

State Reps. Polly Campion (R-Grafton 12) and Tim Horrigan (D-Durham) oppose this bill. Rep. Campion argues that this amendment’s “language is so broad as to read to real challenge and misinterpretations,” such as possibly preventing the Department of Motor Vehicles from asking a driver’s license applicant if they’re visually impaired, potentially requiring a long and arduous process to obtain the information.

Professor Scherr disagrees with those who are concerned about this amendment’s broad language, as he says that amendments lay out principles that are then implemented by the legislature and interpreted by the courts, which decide specific cases in light of the principle:

“The concern over the amendment’s language] is a misunderstanding of how constitutional language should be written. The point of amendments is not to lay out specifics in great detail ... [amendments] act as statements of principle.”

Rep. Horrigan disagrees with Professor Scherr’s rebuttal, arguing that Question 2 “uses a weak and incomplete definition of privacy and it couples it with what seems like a random set of three admittedly beautiful adjectives: Natural, essential and inherent,” leaving it “unclear how this language would be interpreted by our state’s lawyers and judges.” Rep. Horrigan concludes that “this legislation is literally not ready for primetime.”

Reps. Neal Kurk (R-Hillsborough 2) and Robert Cushing (D-Rockingham 21) co-sponsored this amendment in the New Hampshire General Court. Question 2 was introduced into the state legislature as Constitutional Amendment Concurrent Resolution 16 (CACR 16). The New Hampshire House of Representatives passed it 235-96, with 37 members absent; later, the New Hampshire Senate passed it 15-9.

If passed, this amendment would make New Hampshire the eleventh state with a right to privacy in its constitution.

Summary by Lorelei Yang

(Photo Credit: iStockphoto.com / guvendemir)