A Privacy Case Study - State of New Hampshire
This week New Hampshire voters approved a privacy amendment to the state constitution. The amendment declares an individual’s privacy to be a natural right that must remain free from government intrusion. Ten other states – Alaska, Arizona, California, Florida, Hawaii, Illinois, Louisiana, Montana, South Carolina, and Washington – have similar provisions that expressly address a right to privacy.
Here is the exact language New Hampshire added: “An individual’s right to live free from government intrusion in private or personal information is natural, essential, and inherent.” It will be interesting to see how exactly a court will interpret the language contained in the amendment but it is clear that citizens of New Hampshire have the unalienable right to protection from any government agency or agent abridging their liberty. This protection means that the government must obtain a judicial warrant, supported by probable cause, before accessing any personal information. The compelling interest test would be applied and the government would need to show a compelling state interest in obtaining access before the court would allow access. This also helps prevent police from accessing private information through third parties like ISPs without a waiver or warrant.
Similar to discussions related to GDPR and a federal privacy regulation, the purpose of the amendment is about the reason for the collection of data and the usability of that data once it is collected. The intent behind the amendment is to force government actors to establish the interest in collecting data and weigh it against the invasion of personal privacy it creates. It is meant as a guiding principle for collection and not as a ban. How does your state protect you?
Written by Emily McNeeley, CIPP/US, Attorney, Intuitive Edge Team