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Lawmakers eye privacy amendment

Union Leader | January 28, 2007 

With yet another data security breach making headlines, this one potentially affecting thousands of New Hampshire debit card consumers, is it time to consider a constitutional amendment guaranteeing the right to personal privacy?

And just what would that look like?

State Rep. Jim Ryan, D-Franklin, isn't sure but he thinks it's time to find out. Ryan is sponsoring legislation to create a committee to study whether to draft a privacy amendment to the state Constitution.

Ryan noted other states, including Alaska, Montana, Hawaii and Florida, have adopted such amendments to their own Constitutions; he said a good early step would be to check to see whether there were any unintended consequences since those measures were adopted.

"One of our fears is what a Constitutional amendment means in the Legislature may not be considered as such when the courts are asked to interpret it," he said.

Ryan, who teaches political science at New England College in Henniker, said the issue needs to be approached cautiously, "not only because it's a Constitutional amendment but because the technology changes as rapidly as you can catch up with it."

Privacy-related bills have been showing up in Legislative Service Requests for many years, and the 2007 session is no different. State Rep. Neal Kurk, R-Weare, one of the Legislature's fiercest privacy advocates, has proposed several measures meant to protect New Hampshire residents from a variety of technological intrusions.

Real ID
At the top of Kurk's list is a second try at preventing New Hampshire from participating in the federal government's Real ID program.

New Hampshire is not alone in tackling this one. The National Conference of State Legislatures (NCSL) rates "Homeland security and standardized ID cards" as Issue No. 2 on its list of "top 10 policy issues" facing state legislatures this year.

The NCSL notes states will have to spent at least $11 billion over the next five years to comply with the Real ID Act. There's a May 2008, deadline for states to meet federal standards for issuing state driver's licenses and other identification cards -- standards that have not yet been released, according to the NCSL.

Here in New Hampshire, the House passed a measure Kurk co-sponsored last year to reject Real ID, but the Senate refused to negotiate a compromise version. The bill, he contends, "was the victim of a game of political chicken."

He thinks the proposal may have a better chance this time around, given the heightened public interest in privacy issues.

Indeed, the NCSL ranks privacy as Issue No. 9 on its top 10 list this year, with many state legislatures taking up bills addressing identity theft, Internet and e-mail scams, and credit card and social security number protections. The organization noted 34 states have enacted legislation requiring disclosure when personal records are compromised; New Hampshire passed such a law last year and it took effect on Jan. 1.

On Jan. 17, TJX, the parent company of T.J. Maxx, Marshalls, HomeGoods and other stores, announced a security breach of its computer systems, and as a result, several New Hampshire banks have begun issuing new debit cards to customers.

In addition to the Real ID measure, Kurk has submitted proposals for bills requiring companies to provide notice if "tracking devices" -- known as RFID tags -- are used in consumer products; banning "pretexting" to obtain personal information; and allowing consumers to opt out of cell phone directories.

Privacy at home
Rep. Robert L'Heureux, R-Merrimack, has a bill to tweak a new law that prevents someone from observing or recording what goes on inside a person's home. The 2005 legislation, which came out of a feud between neighbors in his town, "didn't go far enough," he told the Sunday News.

This time, L'Heureux wants to expand the protection to prevent anyone from videotaping another person's private property or residence.

In this era of YouTube and other amateur video Internet sites, it could be a timely debate.

"Privacy doesn't exist anymore, and we have to return to it," L'Heureux said. "I should be able to do whatever I want on my property so long as it doesn't interfere with anybody else, without having to have all the neighbors around me setting up cameras just to irritate me."

Meanwhile, another bill would change the very same law to allow homeowners to videotape on their own property without notice.

Rep. Dudley Dumaine, R-Auburn, is sponsoring HB 97, which was sparked by the arrest last year of a Nashua man after his home security camera recorded detectives who had come looking for his son. Michael Gannon was arrested after he brought the recordings to the police station to complain about a detective's rude behavior; felony wiretapping charges were later dropped but police confiscated the recording.

As for that Constitutional amendment on personal privacy, Kurk said the timing may be right to study such a measure.

"Over the past 20 years I've been in the Legislature, there has been a major shift in awareness and sensitivity to privacy issues," he said.

And as evidence of that shift, Kurk notes he's not the only one proposing privacy-related legislation of late. "I'm very pleased that so many other people are recognizing one of the consequences of technological change has been intrusions on what used to be protected, not by statute but by the inability to invade privacy. But as that has changed, people have become much more sensitive to it and a lot more folks are introducing legislation."

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