August 11. 2018 9:26PM

Is NH privacy amendment too vague?

By TODD FEATHERS
New Hampshire Union Leader


Governments collect all kinds of information.

New Hampshire's Comprehensive Health Care Information System has a detailed database of every single medical, dental and pharmacy insurance claim in the state. A copy of which, without names, is available to anyone upon request.

Police departments can deploy scanners that identify 1,500 license plates per minute and store their locations in a database for a short period of time. They also can purchase software that makes it easy to track a person's movements based on public tweets and Facebook posts.

Sex offenders must turn over online screen names and descriptions of their tattoos. Recipients of housing assistance must disclose the make and model of cars and the value of all their assets.

Your neighbor can even find a detailed layout of your home at the local planning department, if he or she is inclined to look.

This November, New Hampshire voters will be asked to consider a constitutional amendment that could shape the future of government access to personal information, and it could do it in ways that are as profound, and unexpected, as the technologies government uses to collect such details.

"There was no precipitating event (to putting forward the amendment), it was just an accumulation of scientific and technological developments over the decade that allow an extraordinary amount of personal and private information to be accessed through DNA or, say, social media," said Rep. Neal Kurk, R-Weare, a co-author of the language.

"The purpose of the amendment is to prevent the creation of dossiers on individuals who have done nothing illegal and are not accused of doing anything wrong," he added.

The amendment, one of two that will appear on the ballot, would add 19 words to the state constitution: "An individual's right to live free from governmental intrusion in private or personal information is natural, essential, and inherent."

It has support from organizations like the libertarian-leaning N.H. Liberty Alliance and the ACLU. But it has also drawn criticism for its broad - some say unclear - wording.

Some legal experts, law enforcement officials and legislators, including many who support the idea in principle, worry that the one sentence might open the door to interpretations its crafters never intended.

"If it were to pass, it is more likely to cause more problems than it would solve," said former New Hampshire Supreme Court Chief Justice Linda Stewart Dalianis. "This is a version of the unintended consequences argument. People have good ideas and they think that constitutional amendments will solve their problems. ... Typically that is not true. It tends to raise more questions than it answers."

In the Legislature, there was debate within both parties over how to vote on the amendment, known as Constitutional Amendment Concurrent Resolution (CACR) 16.

Had there been one fewer 'yay' vote in either the House or Senate, CACR 16 would have failed to reach the 3/5 majority necessary to reach the ballot.

"A number of us were concerned that the language might have been a little bit too broad and that it might have led to a lot of frivolous lawsuits with people suing the DMV and saying the government doesn't have the right to know if they have corrective lenses," said Rep. Timothy Smith, D-Manchester.

Tuftonboro police Chief Andrew Shagoury, president of the New Hampshire Association of Police Chiefs, said he wonders whether the amendment's distinction between "private or personal," versus private and personal, information could someday prohibit investigators from using the same simple internet search that a private citizen might to find details about a person's life.

If the amendment is ratified, New Hampshire would become the 11th state with a specific right to privacy enshrined in its constitution, according to the National Conference of State Legislatures.

None of the other states' constitutions include such an explicit carve out for information privacy, although courts have interpreted them to extend into that realm, said John Dinan, a political science professor at Wake Forest University who studies state constitutions.

Fear that the amendment could be used to prevent government agencies from reviewing building plans or gathering information like sex offenders' addresses is likely overblown, legal experts said, but there are plenty of areas in which its impact will be less clear.

"You can see someone using this amendment, if passed, in litigation against license plate readers," Dinan said. After years of prohibiting the technology, the Legislature in 2016 voted to allow police departments to use license plate readers, although the restrictions on how the data can be used are far more stringent than in other states.

John Greabe, a constitutional law expert at the University of New Hampshire School of Law, wondered whether a parent who disagrees with vaccinations might view the amendment as justification to withhold their child's vaccination history from a school.

"It's pretty vague and general language and the question is really: What, if anything, will courts do with it that differs from what courts do in other privacy related contexts?" he said, adding, "Some judges are a little bit more energetic in using general text to bring about legal change. Others are more reluctant to do that."

Proponents of the amendment, who plan to start a campaign to encourage voters to support it in the coming weeks, acknowledge that the language will spur further litigation and legislation. And they see that as a good thing.

The purpose of a constitutional amendment isn't to micro-manage every foreseeable scenario, said Dan Maguire, political director for the N.H. Liberty Alliance, but rather to establish essential rights and values for courts and legislators to base their decisions on.

"We're talking about a very broad, fundamental human right and some people think 'Well, what about the unintended consequences?'" Maguire said. "Let's put a mark in the sand saying 'These rights are important; let's have them.' And then let them get defined later through the process."

tfeathers@unionleader.com