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About NH 2

Government Accountability Amendment

This updates our Fourth Amendment right to be free “… from unreasonable searches and seizures …” for the information age. It protects personal information from government snooping regardless of where or how it is found.

Vote YES on NH 2

NH 2 in November would add the following to Article 8 of the NH Constitution Bill of Rights:
“[Art.] 2-b. [Right to Privacy.] An individual’s right to live free from governmental intrusion in private or personal information is natural, essential, and inherent.”

Sponsored by Neal Kurk and Renny Cushing.

Election Countdown: November 6, 2018

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Under the Fourth Amendment to the US constitution, and the similar Part 1, Article 19 of the NH Constitution, our “person, houses, papers and effects” are protected against warrantless searches. In a world without email, video, cell phones, DNA and databases all private information was physical; it was letters, diaries and other papers and objects. In order to get at them government agents would have to go to where they were, find them and seize them.

Today, personal information can also be found in the cloud. It can be copied, not seized. Bits of your DNA, which identify you, can be found on your fork after you finish a meal at a restaurant. Government ought to demonstrate probable cause of a crime to collect such information just as they do when they want to read private letters.

Why do we need this amendment?

The U.S. Supreme Court has established a two-part test to determine whether personal information can be seized by the government. First, the individual must demonstrate an expectation of privacy, i.e. do something, like closing a door, to show that privacy is desired, and second the expectation of privacy must be reasonable.

Unfortunately, courts and ordinary people don’t think the same things are reasonable. Most people would think that they haven’t surrendered their DNA by dining out and they haven’t made their personal thoughts public by sending texts and emails. Courts think those things are not private. Texts and emails are not encrypted, so anyone with the right equipment can read them. Similarly, you didn't take that fork to the bathroom and wash it.

We need this amendment so that ordinary people’s expectation of privacy is the norm, not the exception.

NH Question 2 is the necessary response to this technological and scientific era. It fills the gap in the New Hampshire Constitution regarding individual protection from governmental intrusion in personal and private information.

While Part I, Article 19 of our state constitution provides some protection in the arena of police investigation, NH Question 2 provides much broader protection against a wider array of governmental intrusion of private and personal information outside the criminal investigation context.

So many Americans have tested their DNA that the nation’s privacy is at risk

A new study argues that more than half of Americans could be identified by name if all you had to start with was a sample of their DNA and a few basic facts, such as where they live and how about how old they might be. Click here to read more…

NH Question 2 does not absolutely prohibit any and all access to personal and private information.

Those who say so are either misunderstanding its legal effect or greatly exaggerating its effect.

Instead, it would effectively change the balancing a court already does when deciding whether the governmental interest in gaining such access outweighs the nature and degree of intrusion on an individual’s privacy interest.

Specifically, it would require the government to now show a compelling state interest in obtaining access to the personal and private information before a court would order such access. Sometimes, the state will be able to meet that burden, particularly when public safety is at risk and sometimes it would not.

The imposition of this burden will in no way cripple the government’s ability to function.

Access to personal and private information for which the government has probable cause to believe will help solve a crime will still be accessible via a search warrant.

By contrast, random gathering of personal and private information by the government as part of a fishing expedition or just because nothing stops the government from doing so will be prohibited by virtue of the balancing test described above.

NH Question 2 only applies to government conduct related to individuals. It does not apply to commercial conduct, unless done on behalf of the government.

Part I of the New Hampshire Constitution (and, for that matter, the U.S. Constitution’s Bill of Rights) only regulates interactions between the government and an individual. Generally, state and federal statutes regulate the interactions between commercial entities and individuals, and between individuals.

NH Question 2 is a very necessary step to take back an individual’s privacy in their personal and private information in response to the growing prevalence and capacity of technology used by the government.

It puts in place an incremental but essential increase in an individual’s protection from government interference, consistent with New Hampshire’s legacy of cherishing individual liberty.

The Need for NH Question 2 – A Gap in Privacy Protection

Professor Albert (Buzz) Scherr – UNH School of Law

I am a professor of law at the University of New Hampshire School of Law.  I have taught at UNH Law for almost 25 years in areas such as criminal procedure (crime, police investigation & the Constitution) and genetic privacy (commercial and governmental intrusions on one’s genetic information) among many others. I have also consulted on and written about  information privacy, genetic privacy as well as other privacy topics.

 
I come before the Senate Rules and Enrolled Bills Committee in writing because I have a long-scheduled Easter trip starting on the date of the Committee’s hearing.
 
When I graduated from law school in 1981, Facebook didn’t exist and Mark Zuckerberg was yet to be born.  Twitter, Google, Snapchat, Amazon etc. similarly did not exist.  The Internet wasn’t even in its infancy.  Cellphones were an idea and information databases were of miniature capacity and much more limited scope compared to the present.  Governmental and commercial tracking of browsing history, the ideas of drones and of visual data collection were more science fiction than reality.
 
Genetic research was proceeding in the medical arena, but the use of forensic DNA in court was almost a decade away and the creation of state and federal governmental genetic databases was almost 15 years away.  Companies like 23andMe.com and ancestry.com that provide commercial ancestry and medical disorder testing did not exist. 
 
The concern over discrimination based on one’s genetic makeup in the provision of health and life insurance or in hiring was, if even occurring, based on something other than reliable genetic testing because neither commercial nor scientific tests for genetic disorders existed.
 
The list goes on and on.  Today, all of the above are happening and much, much more.  Put simply, we are awash in our own personal data, and the potential for the government, commercial, and rogue entities to access it grows almost daily. 
 
NH Question 2 is the necessary response to this technological and scientific era.  It fills the gap in the New Hampshire Constitution regarding individual protection from governmental intrusion in personal and private information.  While Part I, Article 19 of our state constitution provides some protection in the arena of police investigation, NH Question 2 provides much broader protection against a wider array of governmental intrusion of private and personal information outside the criminal investigation context.
 
NH Question 2 does not absolutely prohibit any and all access to personal and private information.  Those who say so are either misunderstanding its legal effect or greatly exaggerating its effect.
 
Instead, it would effectively change the balancing a court already does when deciding whether the governmental interest in gaining such access outweighs the nature and degree of intrusion on an individual’s privacy interest.  Specifically, it would require the government to now show a compelling state interest in obtaining access to the personal and private information before a court would order such access.  Sometimes, the state will be able to meet that burden, particularly when public safety is at risk.
 
The imposition of this burden will in no way cripple the government’s ability to function.  Access to personal and private information for which the government has probable cause to believe will help solve a crime will still be accessible via a search warrant.  By contrast, random gathering of personal and private information by the government as part of a fishing expedition or just because nothing stops the government from doing so will be prohibited by virtue of the balancing test described above.
 
NH Question 2 only applies to government conduct related to individuals. It does not apply to commercial conduct, unless done on behalf of the government.  Part I of the New Hampshire Constitution (and, for that matter, the U.S. Constitution’s Bill of Rights) only regulates interactions between the government and an individual.  Generally, state and federal statutes regulate the interactions between commercial entities and individuals, and between individuals. 
 
NH Question 2 is a very necessary step to take back an individual’s privacy in their personal and private information in response to the growing prevalence and capacity of technology used by the government. It puts in place an incremental but essential increase in an individual’s protection from government interference, consistent with New Hampshire’s legacy of cherishing individual liberty. To be sure, it is not a cure-all but it is a very important first step in that process.  I urge the Committee to vote ought to pass on NH Question 2.

Would Question 2 Lock Roe v. Wade
into the NH Constitution?

No! Professor Albert Scherr of the UNH School of Law assures that:

The informational privacy right in NH Question 2 is very different from the decisional privacy right relied on in Roe v. Wade and the many subsequent cases in the U.S. Supreme Court addressing the same issue.

Click here to read the full article…

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