CONCORD, N.H. (Oct. 25, 2018) – On Nov. 6, New Hampshire voters will have an opportunity to say “yes” to privacy and set the stage to undermine the federal surveillance state.

A constitutional amendment establishing the protection of privacy rights will appear on the New Hampshire ballot. If passed, Question 2 would add the following language to Article II of the New Hampshire state constitution.

“An individual’s right to live free from governmental intrusion in private or personal information is natural, essential, and inherent.”

Legislative action earlier this year placed Q2 on the ballot.

Rep. Neal Kurk (R-Weare) and Rep. Robert Cushing (D-Hampton) introduced House Constitutional Amendment 16 (CACR16) in January. The legislation passed the House by a 235-96 vote and cleared the Senate 15-9.

Addition of this language to the New Hampshire bill of rights would bar the state from infringing on an individual’s right to privacy and create a legal framework to protect personal information – including digital data – from the prying eyes of the government. Passage of the amendment would establish the right to privacy as the default setting in the state of New Hampshire.

As the ACLU pointed out in an article in support of the amendment, without protections explicitly enshrined in the state constitution, the right to privacy in New Hampshire exists at the whims of state legislators.

“Without state constitutional protections, privacy is not the Granite State’s default setting. Rather, it needs to be repeatedly established, protected, and defended by the state legislature each time a new surveillance technology or method is established, which is a common occurrence in our modern technological world. State legislators should not play an endless game of Whack-A-Mole against threats to their residents’ privacy. Relying exclusively on piecemeal statutes or search and seizure provisions written before the dawn of the internet is no way for New Hampshire to protect privacy.”

As it stands, Individuals in New Hampshire have no state constitutional foundation to argue against state and local government surveillance. They have to rely on protections written into statutes that legislators can change on a whim. Passage of Q2 would create a legal, constitutional basis to challenge state surveillance. According to the ACLU, it would “require that the government obtain a judicial warrant, supported by probable cause, before accessing any personal information.” It would also set the foundation to help prevent law enforcement from accessing private information through third parties.

“Put simply, adopting Q2 would fill important gaps in current statutory privacy protections and would provide automatic privacy protections regardless of what the next wave of surveillance technologies and techniques bring. Nothing could be more consistent with New Hampshire’s legacy of cherishing individual liberty.”

Impact on Federal Programs

Passage of Q2 would create the foundation to limit state and local surveillance and minimize the amount of personal information collected and stored by state and local governments. By doing so, it would also impact federal surveillance programs that depend on state and local support.

Information collected by local law enforcement undoubtedly ends up in federal databases. The feds can share and tap into vast amounts of information gathered at the state and local level through a system known as the “information sharing environment” or ISE. In other words, local data collection using ALPRs, stingrays and other technologies create the potential for the federal government to track the movement of millions of Americans, and obtain and store information on millions of Americans, including phone calls, emails, web browsing history and text messages, all with no warrant, no probable cause, and without the people even knowing it.

According to its website, the ISE “provides analysts, operators, and investigators with information needed to enhance national security. These analysts, operators, and investigators… have mission needs to collaborate and share information with each other and with private sector partners and our foreign allies.” In other words, ISE serves as a conduit for the sharing of information gathered without a warrant.

The federal government encourages and funds surveillance technology including ALPRs, drones and stingrays at the state and local level across the U.S. In return, it undoubtedly gains access to a massive data pool on Americans without having to expend the resources to collect the information itself. By requiring approval and placing the acquisition of spy gear in the public spotlight, local governments can take the first step toward limiting the surveillance state at both the local and national level.

In a nutshell, without state and local assistance, the feds have a much more difficult time gathering information. If the state limits surveillance and data collection, that will mean less information the feds can tap into. This represents a major blow to the surveillance state and a win for privacy.

Mike Maharrey

The 10th Amendment

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”



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