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By Tripp Baltz
Dec. 18 — Other states may want to follow Wyoming lawmakers, who in early 2015 will consider a proposed constitutional amendment (15LSO-0066) that would make it only the 11th state to include an express general right of individual privacy in its constitution.
The draft amendment, which would specify that the right to individual privacy is “essential to the well-being of a free society and shall not be infringed without the showing of a compelling state interest,” is modeled after similar provisions in the Montana and Hawaii constitutions, Wyoming state Sen. Chris Rothfuss (D) told Bloomberg BNA.
“What Wyoming is proposing to do is not all that common,” Pam Greenberg, researcher on Internet, technology and privacy issues for the National Conference of State Legislatures in Denver, told Bloomberg BNA. “Constitutional amendments concerning privacy are pretty rare,” she said.
Marc Rotenberg, president and executive director of the Electronic Privacy Information Center in Washington told Bloomberg BNA that although relatively few have done so, other states might consider enacting a privacy amendment in order to “provide very specific protections where the federal Constitution may come up short.”
The “word privacy does not appear in the U.S. Constitution,” he said. “States really are the laboratories of democracy, and they are looking for ways to make privacy more explicit as a right.”
Jeffrey M. Shaman, Vincent de Paul Professor of Law at the DePaul University College of Law in Chicago, told Bloomberg BNA that despite the absence of the word “privacy” in the Constitution, the U.S. Supreme Court and other federal courts have recognized a federal right to privacy over the years.
Constitutional amendments on privacy usually place restrictions on what government may or may not do with respect to individuals, he said. It will be interesting to see what effect the Wyoming amendment will have on the actions of private entities regarding the collection of data, he said.
Constitutional amendments must be approved by voters in Wyoming. To advance to the ballot, proposal must receive two-thirds approval in the Senate and House. It would then need to receive approval from more than 50 percent of total number of voters casting ballots in the general election.
If approved by the Legislature in the session that begins in January, the voters would consider the amendment in November 2015.
“The state of Wyoming values privacy as one of its highest priorities,” Rothfuss, who was chairman of the legislative Task Force on Digital Information Privacy that recommended the constitutional amendment, said.
Including the “compelling state interest” language in the proposed amendment is appropriate and consistent with the state constitution's Article 1, which concerns general rights, he said.
“Courts will have to apply strict scrutiny in determining whether a government agency demonstrated a compelling state interest justifying the infringement of a person's privacy right,” he said.
Adding an individual right to privacy to the Wyoming Constitution was one of six recommendations made by the task force, which was established during the 2014 session of the Legislature to consider several issues relating to digitally-stored private information and related matters. The task force issued its report in October.
In addition a general individual privacy constitutional amendment, the Task Force on Digital Information Privacy recommended a bill (15LSO-73) to protect employees by prohibiting employers from requesting or requiring access to a personal Internet account of a worker or job applicant. The draft bill would also prohibit an employer from taking adverse action against an employee or prospective employee for failing to disclose information to access a personal Internet account.
The task force also recommended four other draft bills:
• (15LSO-67) to require the state to establish minimum government privacy and data security policies for state agencies;
• (15LSO-74) to grant personal representatives the authority to access, transfer or terminate a decedent's electronic communications unless contrary to the express provisions of a will, trust instrument, power of attorney or court order;
• (15LSO-75) to amend the state identity theft and data breach notification statutes to expand the scope of protected personal identifying information to include, among other things, a username or e-mail address, health insurance information, individual taxpayer identification number and credit or debit card number;
• (15LSO-133) to amend the breach notice statute to require specific information regarding the nature of the breach in notices to consumers.
The task force forwarded its draft bill recommendations, including the constitutional amendment, to the Joint Interim Committee on Corporations, Elections & Political Subdivisions, which approved them Nov. 14 as bills to be considered during the 2015 legislative session.
States considering adding privacy rights to their constitutions are responding to “growing public concern about the scope of government surveillance and the capabilities of new technologies, including low-flying helicopters and drones,” Rotenberg said. “Lawmakers in Washington have not been doing very much to update privacy laws.”
Shaman noted that there are growing concerns about “people spying on us and collecting our data on the Internet.”
Rotenberg said that in an era with ever increasing collection and profiling of personal data by public and private entities, individuals may need more protection than those afforded by the Fourth Amendment, which guards against illegal search and seizure, he said. States can provide that protection, he said.
Greenberg said that although some of the existing 10 state constitutions that have privacy provisions specifically address illegal search and seizure, they are “fairly broad” in their language. All of the state constitutions with such protections include the word “privacy” or “private,” in contrast to the U.S. Constitution, she said.
Greenberg, who monitors state privacy legislation for the NCSL, had included Missouri in the list of states with constitutional individual privacy protections due to voter approval of a constitutional amendment in August. But she said she later removed the state because the amendment focuses narrowly on illegal search and seizure.
Greenberg said that several of the state amendments on privacy were established in the 1970s and 1980s following U.S. Supreme Court rulings that increasingly recognized private and personal rights.
Shaman said more recently the right of privacy is “taken to mean autonomy—such as the right to make your own reproductive choices, to engage in intimate sexual relationships, to enter into a gay marriage,” and the like.
States may want to “confirm how important the right of privacy is” by amended such language into their constitutions, he said. “I think it's a good idea for a state to include an express provision protecting the right of privacy,” he said.
When the Wyoming constitutional amendment proposal was under consideration Committee on Corporations, Elections & Political Subdivisions, the Wyoming Press Association registered its concerns about the effect the proposed constitutional amendment could have on public information and open meetings in the state.
“I am worried the constitutional guarantee will be used to obscure information the public is supposed to have access to,” Jim Angell, executive director of the association in Cheyenne, told Bloomberg BNA. He asked “who's going to decide what is a compelling state interest? I see the potential for a whole lot of court decisions with this.”
Angell said he would like to see “balancing language” like that included in the Florida constitution's privacy provision, which says that the right to privacy shall not limit rights of access to public records and meetings as provided by law.
Opposition to the Wyoming privacy amendment also came from Sen. Charles Scott (R), a member of the Corporations Committee, who said he was concerned about the potential unintended consequences of the proposal.
“What might the courts do with this that we haven't contemplated? You've got to have a real good reason to amend the constitution, and I don't think the proponents have articulated an adequate reason,” Scott told Bloomberg BNA.
Scott urged the Legislature to enact specific privacy protections in statutory law instead of as a constitutional amendment. “It's easier to reverse it if it's a statute,” he said.
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The report of the Task Force on Digital Information Privacy, which includes links to the bills proposed by the task force, is available at http://legisweb.state.wy.us/InterimCommittee/2014/SDIRPT1001.pdf.
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