With the debate sizzling over the revelations that the United States government is collecting so-called megadata through its PRISM program, while also collecting data on telephone calls, it is more than interesting to point to California decades ago confronting privacy issues and government’s ability through technology to collect data on citizens.
California voters affirmed an inalienable right to privacy by approving a state constitutional ballot measure in 1972. Privacy was added at the top of the constitution, Article 1, Section 1, which now reads: All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.
Assemblyman Ken Cory (later state controller) and state Senator George Moscone (later mayor of San Francisco), the measure’s authors, made arguments similar to those now being raised against the current government programs under fire.
“The proliferation of government snooping and data collecting is threatening to destroy our traditional freedoms,” Cory and Moscone wrote. “Government agencies seem to be competing to compile the most extensive sets of dossiers of American citizens. Computerization of records makes it possible to create cradle-to-grave profiles on every American.”
The privacy measure, Proposition 11 of November 1972, was passed with 63% of the vote. The California right to privacy has been deemed stronger than federal privacy protections. In a paper published by the Pepperdine Law Review a couple of decades ago, J. Clark Kelso noted, “In many of these rulings, the Supreme Court of California has indicated that the scope of the protection granted by the state constitution’s explicitly enumerated privacy right is sometimes greater than the scope of the United States Constitution’s unenumerated right of privacy.”
One might ask: Does this mean someone can use the state constitution to challenge the federal actions here in California? Seems doubtful given the overriding power of federal laws, although I don’t have the legal expertise to speculate on that. However, there are other legal questions here, no less than the U.S. Constitution’s Fourth Amendment decree against unreasonable searches and probable cause for a warrant.
California is in the forefront of this current debate with her senior senator, Dianne Feinstein, Chairwoman of the Senate Intelligence Committee, aggressively defending the program and some high-profile California based Internet companies sitting in the hot seat – did they turn over information to the government and, if so, under what circumstances?
The privacy clause in the state constitution has been focused more on how businesses deal with data collection. Last year, state Attorney General Kamala Harris instituted a Privacy Enforcement and Protection Unit, saying, “The Privacy Unit will police the privacy practices of individuals and organizations to hold accountable those who misuse technology to invade the privacy of others.”
The Attorney General has a specific page on her website dedicated to privacy.
Clearly, privacy is an important issue for Californians.
The security side of the debate has champions as well, as the Wall Street Journal editorialized; “The data sweep is worth it if it prevents terror attacks that would lead politicians to endorse far greater harm to civil liberties.”
The issue of government intrusion of our privacy through technology goes back well near a century in this country. Supreme Court Justice Louis Brandeis called the right to be left alone the “most comprehensive of rights and the right most valued by civilized men.” Ironically, he wrote that in a minority opinion in a 1928 case in which government wiretapping was used to convict a bootleg gang.