Eugene Volokh is the Gary T. Schwartz Professor of Law at the UCLA School of Law, and he’s got a question. What does this amendment to the New Hampshire Constitution mean?
“An individual’s right to live free from governmental intrusion in private or personal information is natural, essential, and inherent.”
He asked his readers to answer the question prefacing the request with this.
My question: What do you think this means?
- That all governmental searches of private or personal information (and all subpoenas of such information) are now unconstitutional, so that the government can’t, for instance, get your e-mail records even with probable cause and a warrant?
- That such searches and subpoena require a probable cause and a warrant (language that the provision does not contain, though section 19 of the New Hampshire bill of rights, the existing search and seizure provision, does)?
- That such intrusions may be allowed, but only if they are narrowly tailored to a compelling government interest, to borrow a test that has sometimes been used for other facially categorical rights?
- That traditionally accepted intrusions are grandfathered in as legitimate, but that ones introduced after the amendment is enacted are not?
- That the public is essentially delegating to courts the responsibility and authority to turn this into some meaningful test that accommodates both privacy rights and the need to gather information in order to enforce the laws?
- Something else?
Also, (7) would this also apply to civil cases, where a litigant seeks to use the state courts’ subpoena powers to require the opposing litigant to turn over some “private or personal information” that is nonetheless potentially relevant to a lawsuit?
As it turns out, this is a question left for judges to decide and the result will be a redefinition of what is private or personal in the context of state’s need. Collective need. Not exactly what the crafters and promoters had in mind though perhaps that was exactly what they were after.
