Ballot Question 2: Should 'Right to Live Free' Language Be Added to the N.H. Constitution?

Nov 5, 2018

Credit Tracy Lee Carroll, NHPR

New Hampshire voters will have the opportunity to decide next week whether to pass two amendments to the state constitution in the form of questions on the ballot.

The second ballot question addresses the individual right to privacy from the state in reference to personal information and data.

Morning Edition Host Rick Ganley spoke with UNH law professor John Greabe about what this change would mean for Granite Staters.

 

(Editor's note: This transcript has been edited lightly for clarity. Related story: How Should You Vote on Constitutional Amendment Ballot Questions?)

This amendment would add language to the New Hampshire Constitution stating that "an individual's right to live free from government intrusion in private or personal information is natural essential and inherent." So what does that mean?

Well, what that means is I think still to be determined. I think that this too, much like the question one ballot initiative, is also an invitation to greater involvement by the court.

It's intentionally vague?

Yes, I think so. It's intentionally abstract at least, and through the use of abstract language such as this, it's really an invitation to the courts to work out the balance in a number of different contexts. I mean, many of our most basic constitutional protections are stated in relatively abstract language -- you know due process of law. What does due process of law mean? And we have spent more than a century sort of ...

Arguing about that ... 

Arguing about that and building up a series of precedents. Without this language, those who would argue that there's some sort of constitutional issue would have to try to fit it within the notion of privacy that is inherent in the ban on unreasonable searches and seizures.

The physical property, the physical world really.

That's right. You know, so there's not a specific provision of the Constitution that talks about data in this way. And so this is a statement saying as a presumptive matter the government doesn't have access to this information. Now none of our constitutional rights are absolute, and there are all sorts of situations where we have constitutional rights but they're qualified and they're limited. And I think if this were to be adopted, it would be a case by case, context by context evolution of the law led by the court system.

Do we know what is considered information then under this? Are we talking about DNA, and passwords, and online data and that kind of thing? What are we talking about here?

Well that's what will be worked out. That will be worked out on a case by case basis, because as you pointed out, the language is abstract and one can envision all sorts of emerging disagreements about the meaning of this language in different contexts.

So what was the origin of this particular question?

I don't know what the specific trigger was, but I think that there is generally a concern about the amount of data that is being generated in our society. And it's not just the power of government right? It's the power of social media giants as well. This obviously is a constitutional amendment. The Constitution only limits government actors. So this isn't going to be something that's going to be applicable by its terms to Facebook, or Twitter or you know any of these social media giants.

Yes, this does not address the actual social media data collectors. This is talking about the government's access to that without having express consent for it.

That's right, and big data creates all sorts of opportunities, but it also raises all sorts of privacy concerns.

Well, can you provide an example of how if this amendment were to pass, how this might actually work going through a court case?

Well there are all sorts of situations where we are required to hand information over to the government. So for example, my kids. I always have to provide information about whether my kids have had a physical and are their vaccinations up to date. What this allows, at least in theory, is anybody who objects to a request for information from some governmental entity to say whoa I don't think you're entitled to that. Then I'm going to resist that. And that becomes a lawsuit, which invites the courts in. And then just to stay with that same example, the courts would have to decide in that context does this constitutional right trump the need of public schools, for example, to have information about student health records.

What are some of the groups here in New Hampshire supporting or fighting this amendment?

Well, the group that I've been most aware of that's been arguing on its behalf is the ACLU. The local chapter of the New Hampshire Civil Liberties Union I know is supportive of this, and that is consistent with the mission of the ACLU. These concerns that I see expressed, I don't necessarily associate those concerns with one political party or the other or one interest group or the other. I think there are just general concerns about the generality of the language, the abstract nature of the language and the amount of power that that transfers to the court system with respect to various public policy issues. Because again, judges now are going to be invited in to put some meat on the bones of this and there are people who are concerned about that. People who see the benefits of data and see the government as an unnecessary partner in solving problems and needing access to information in order to do that. And I think our concern that these sorts of lawsuits could, at the very least, slow things down and make it more difficult for government to solve sorts of problems.

Could this potentially affect the states data collection and creating public policy?

Oh absolutely, yeah. For example, healthcare right? As we move ahead with the conundrum that is how are we going to deal with healthcare issues, more and more people are talking about more and more government involvement. If the government is going to be more involved say in the provision of healthcare services, it Is going to be in a role where it's going to need necessarily to be seeking information and all sorts of data in order to make informed decisions about you know types of coverage it's going to provide, when it's going to provide coverage. Again, I'd go back to the notion that our constitutional rights are all qualified. I mean again, our right to free speech does not permit us to shout fire in a crowded theater. So this is not going to be construed in all likelihood by the courts as an absolute limitation on government receiving and seeking information from the citizenry. The government needs to do that. Police departments need to be able to gather information about people commit crimes. But it's really an invitation for the courts to involve themselves far more robustly. And again, people will divide on whether court involvement is a good thing and the extent to which we want the courts to be making those decisions versus our politicians.

Ballot Question 1.
Ballot Question No. 2.