No Place for Strict Katz in New Hampshire’s Right of Privacy
One of the ways in which individual liberty is protected under the federal constitutional scheme is the extent to which it contemplates that states may develop new safeguards under their own constitutions that go beyond what the Bill of Rights contains.1 In November 2018, the citizens of New Hampshire endorsed just such a protection, voting to add Part I, Article 2-b, Right of Privacy, to the state constitution.2 That provision states: “An individual’s right to live free from governmental intrusion in private or personal information is natural, essential, and inherent.”3 According to its legislative history, the amendment is a response to technological innovation and scientific advancements,4 and it is intended to protect private and personal information against governmental intrusion to the same extent physical places and items are protected.5
To date, the New Hampshire Supreme Court has addressed Part I, Article 2-b on only one occasion. In State v. Fay, the Court held that the amendment applied prospectively, rather than retroactively.6 The Court has yet to opine on the extent, if any, to which the amendment applies in the search and seizure context, including such questions as whether an expectation of privacy is encompassed in the protection afforded under Part I, Article 2-b; and, if so, whether the Katz7 two-prong analysis is the appropriate test for determining whether an expectation of privacy exists. The New Hampshire Superior Court has addressed these issues, however, in the context of standing, on at least two occasions, answering both questions in the affirmative.8 It should not be long before these issues find their way to the state’s high court, and, while the New Hampshire Supreme Court is likely to conclude that an expectation of privacy plays a role in applying Part I, Article 2-b—it is hard to imagine the Court would protect information no person expected or sought to keep confidential—the Court may decline to apply the Katz analysis strictly given the scope of the new amendment.
In its 2003 decision in State v. Goss, the New Hampshire Supreme Court adopted the Katz two- prong analysis for determining whether a reasonable expectation of privacy exists under Part I, Article 19,9 which protects against unreasonable governmental searches and seizures.10 Under the Katz analysis, a reasonable expectation of privacy exists when a person exhibits a subjective expectation of privacy, and that expectation of privacy is one that society is prepared to recognize as reasonable.11 “Absent an invasion of the defendant’s reasonable expectation of privacy, there [is] no violation of the defendant’s rights under Part I, Article 19.”12
It seems clear, given their textual differences, that the New Hampshire legislature intended for Part I, Article 2-b to embrace a more robust understanding of privacy than Part I, Article 19. First, Part I, Article 2-b protects against all “governmental intrusion,” not merely governmental “searches and seizures.”13 Second, Part I, Article 2-b is void of the limiting term “unreasonable” before the phrase “governmental intrusion,”14 suggesting a stronger, more inclusive protection of privacy under the amendment.15 Third, Part I, Article 2-b states that the right of privacy is “natural, essential, and inherent,”16 indicating the broadest possible interpretation.17 Finally, while Part I, Article 19 protects only certain specified items—persons, houses, papers, and possessions—Part I, Article 2-b covers the seemingly broader realm of “private or personal information.”18 It follows that the protection afforded by Part I, Article 2-b is broader in scope than that of Part I, Article 19—and that transplanting the strict Katz analysis to the Article 2-b context likely would not respect the textual difference between the two provisions.
The legislative history of the recent amendment to the New Hampshire Constitution also shows the intent for Part I, Article 2-b to provide broader, more inclusive protection than the Katz test allows. For example, prior to its enactment, state legislators repeatedly stated that Part I, Article 2-b would protect private or personal information from governmental intrusion even in situations in which people voluntarily provided the information to third parties.19 Such information is generally not protected under a Katz analysis because courts often conclude that a person who voluntarily provides information to another cannot thereafter claim a reasonable expectation of privacy in the information.20
Even more illuminating, on November 2, 2018, days before the vote, Representative Neal Kurk, one of the prime sponsors and co-authors of the amendment, wrote:
So why do we need this amendment? The U.S. Supreme Court has established a two-part test to determine whether personal information can be seized by the government. First, the individual must demonstrate an expectation of privacy, i.e. do something, like closing a door, to show that privacy is desired, and second the expectation of privacy must be reasonable.
Unfortunately, courts and ordinary people don’t think the same things are reasonable. Most people would think that they haven’t surrendered their DNA by dining out and they haven’t made their personal thoughts public by sending texts and emails. Courts think those things are not private. Texts and emails are not encrypted, so anyone with the right equipment can read them. Similarly, you didn’t take that fork to the bathroom and wash it.
We need this amendment so that, at least in New Hampshire, ordinary peoples’ expectation of information privacy is the norm, not the exception, and government “snooping” into our personal and private information is prohibited.21
This statement indicates that the state legislature did not intend for a strict Katz analysis to apply in the Part I, Article 2-b context. The legislature, in short, did not anticipate that a person’s expectation of privacy under the amendment would be viewed through Katz’s “legal” lens, which at times disregards common sense and reality.22 Rather, the legislature expected that the New Hampshire courts would deploy a test that reflected the understandings of ordinary people in the ordinary course of life.
Finally, in the other states with similar privacy clauses in their constitutions,23 the majority of courts reject a strict Katz analysis when determining whether a reasonable expectation of privacy exists in the search and seizure context.24 Rather, they often conclude that, given the explicit constitutional protection for privacy contained in their constitutions, a broader, higher level of privacy protection is appropriate. These states are more likely to recognize an expectation of privacy as reasonable under their constitutions’ privacy clauses.25 While these states’ courts often use Katz’s two-prong analysis as a foundation when determining whether a reasonable expectation of privacy exists under their privacy provisions, they apply the test in a broader, more protective and inclusive manner.26 In sum, these courts often recognize a reasonable expectation of privacy exists where none would exist under the stricter Katz analysis.27
When finally faced with this issue, the New Hampshire Supreme Court is likely to conclude that a strict Katz analysis is not the appropriate test for lower courts to use when determining whether an expectation of privacy exists under Part I, Article 2-b. Rather, it is likely the Court will be persuaded to honor the broader language of, and intent behind, New Hampshire’s recent privacy amendment and seek a test that reflects the privacy expectations of ordinary people in the ordinary course of their lives.
1✕ See Robert F. Williams, The Law Of American State Constitutions 20 (2009).
2✕ David M. Poell, New Hampshire Voters Enshrine Right to Privacy in State’s Constitution: Live Free or Die Trying, Nat’L L. Rev. (Nov. 19, 2018), https://perma.cc/S9F9-97NA.
3✕ N.H. Const. pt. I, art. 2-b (amended 2018).
4✕ See CACR 16: Relating to Privacy. Providing That an Individual’s Right to Live Free of Governmental Intrusion Is Natural, Essential, and Inherent: Hearing on CACR 16 Before the S. Rules and Enrolled Bills Comm., 2018 Gen. Court, Reg. Sess. 1–2 (N.H. 2018) [hereinafter CACR 16 Senate]; Relating to Privacy. Providing That an Individual’s Right to Live Free of Governmental Intrusion Is Natural, Essential, and Inherent: Hearing on CACR 16 Before H. Comm. on Judiciary, 2018 Gen. Court, Reg. Sess. (N.H. 2018) [hereinafter CACR 16 House].
5✕ Judiciary Comm., Relating To Privacy. Providing That An Individual’S Right To Live Free Of Governmental Interference Is Fundamental., Majority Comm. Rep. On CACR 16 (N.H. 2018).
6✕ 248 A.3d 1191, 1198 (N.H. 2020) (“Ultimately, we are not convinced by the defendant’s arguments that Part I, Article 2-b applies retroactively to her case.”).
7✕ Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring).
8✕ Order on Motion to Suppress at 13–14, State v. Hunter (N.H. Super. Ct. Jan. 31, 2020) (No. 226-2019- CR-00232); Order on Pending Motions at 5–9, State v. Collins (N.H. Super. Ct. Mar. 5, 2019) (No. 219- 2018-CR-00588).
9✕ State v. Goss, 834 A.2d 316, 318–19 (N.H. 2003).
10✕ N.H. Const. pt. I, art. 19 (“Every subject hath a right to be secure from all unreasonable searches and seizures of his person, his houses, his papers, and all his possessions.”).
11✕ State v. Orde, 13 A.3d 338, 342 (N.H. 2010).
12✕ Id.
13✕ Compare N.H. Const. pt. I, art. 2-b, with N.H. Const. pt. I, art. 19.
14✕ Compare N.H. Const. pt. I, art. 2-b, with N.H. Const. pt. I, art. 19.
15✕ See Mozo v. State, 632 So. 2d 623, 633 (Fla. Dist. Ct. App. 1994) (“The drafters of the [Right to Privacy] amendment rejected the use of the words ‘unreasonable’ or ‘unwarranted’ before the phrase ‘governmental intrusion’ in order to make the privacy right as strong as possible.”).
16✕ Compare N.H. Const. pt. I, art. 2-b, with N.H. Const. pt. I, art. 19.
17✕ See Poell, supra note 2 (“The amendment declares the right to privacy to be ‘natural, essential, and inherent’ and therefore, is likely to be given the broadest possible interpretation by courts in most cases.”).
18✕ Compare N.H. Const. pt. I, art. 2-b, with N.H. Const. pt. I, art. 19.
19✕ See, e.g., Martha Fuller Clark & Marjorie Smith, Vote Yes on NH Constitutional Amendments, Seacoast Online (Nov 2, 2018, 5:50 PM), https://perma.cc/K8S9-4KY4; Chad Marlow & Neal Kurk, On Election Day, the Voters of New Hampshire Can Protect Their Privacy in the Digital Age, ACLU (Oct. 15, 2018, 2:45 PM), https://perma.cc/9U7G-KG93. See generally CACR 16 Senate, supra note 4, at 2.
20✕ See State v. Mello, 27 A.3d 771, 775 (N.H. 2011) (concluding defendant had no reasonable expectation of privacy in internet service subscriber information because defendant voluntarily provided information to service provider and it was recorded in provider’s ordinary course of business); State v. Gubitosi, 886 A.2d 1029, 1035 (N.H. 2005) (holding defendant had no protected privacy interest in record of his outgoing phone calls because cell phone company recorded calls for billing purposes and retained records in ordinary course of its business).
21✕ Neal Kurk, Vote for Your Privacy on Question 2, Union Leader (Nov. 2, 2018), https://perma.cc/A2EJ-UT5U (emphasis added).
22✕ See e.g., California v. Greenwood, 486 U.S. 35, 40–41 (1988) (holding no reasonable expectation of privacy in trash left on or at the side of a public street); Mello, 27 A.3d at 775 (concluding no reasonable expectation of privacy in subscriber information); Gubitosi, 886 A.2d at 1035 (concluding no reasonable expectation of privacy in records of outgoing phone calls).
23✕ See, e.g., Alaska Const. art. 1, § 22 (“The right of the people to privacy is recognized and shall not be infringed.”); Ariz. Const. art. II, § 8 (“No person shall be disturbed in his private affairs, or his home invaded, without authority of law.”); Cal. Const. art. 1, § 1 (“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 pursing and obtaining safety, happiness, and privacy.”); Fla. Const. art. 1, § 23 (“Every natural person has the right to be let alone and free from governmental intrusion into the person's private life except as otherwise provided herein.”); Haw. Const. art. 1, § 6 (“The right of the people to privacy is recognized and shall not be infringed without the showing of a compelling state interest. The legislature shall take affirmative steps to implement this right.”); Ill. Const. art. 1, § 6 (“The people shall have the right to be secure in their persons, houses, papers and other possessions against unreasonable searches, seizures, invasions of privacy or interceptions of communications by eavesdropping devices or other means.”); La. Const. art. 1, § 5 (“Every person shall be secure in his person, property, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy. No warrant shall issue without probable cause supported by oath or affirmation, and particularly describing the place to be searched, the persons or things to be seized, and the lawful purpose or reasons for the search. Any person adversely affected by a search or seizure conducted in violation of this Section shall have standing to raise its illegality in the appropriate court.”); Mont. Const. art. 2, § 10 (“The right of 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.”); S.C. Const. art. I, § 10 (“The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures and unreasonable invasions of privacy shall not be violated, and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, the person or thing to be seized, and the information to be obtained.”); Wash. Const. art. 1, § 7 (“No person shall be disturbed in his private affairs, or his home invaded, without authority of law.”).
24✕ See, e.g., McKelvey v. State, 474 P.3d 16, 26–27 (Alaska Ct. App. 2020); Mozo v. State, 632 So. 2d 623, 632-33 (Fla. Dist. Ct. App. 1994) (explaining Florida’s right of privacy provision was deliberately drafted to provide broader privacy rights than federal rights announced in Katz, eliminating the objective prong of Katz’s reasonable expectation of privacy test in the context of right of privacy provision); People v. Nesbitt, 938 N.E.2d 600, 604 (Ill. App. Ct. 2010) (“In reliance upon this express proscription against invasion of privacy in Illinois and influenced by the [1970 Constitutional] Commentary, which suggests that this protection should be broadly applied, we are led to conclude that the Illinois Constitution offers protection for the reasonable expectation of privacy which our citizens have in their bank records.”); State v. Leblanc, 137 So. 3d 656, 660 (La. Ct. App. 2014) (“The Louisiana Supreme Court has interpreted the right of privacy to afford even more stringent protection of individual liberty than the Fourth Amendment.”); State v. Forrester, 541 S.E.2d 837, 841 (S.C. 2001) (“The South Carolina Constitution, with an express right to privacy provision included in the article prohibiting unreasonable searches and seizures, favors an interpretation offering a higher level of privacy protection than the Fourth Amendment.”); State v. Hinton, 319 P.3d 9, 12 (Wash. 2014) (en banc) (“The private affairs inquiry is broader than the Fourth Amendment’s reasonable expectation of privacy inquiry. Under the Fourth Amendment, a search occurs if the government intrudes on a subjective and reasonable expectation of privacy. Under article I, section 7 a search occurs when the government disturbs ‘those privacy interests which citizens of this state have held, and should be entitled to hold, safe from governmental trespass absent a warrant.’” (citations omitted)). But see, e.g., State v. Juarez, 55 P.3d 784, 787–88 (Ariz. Ct. App. 2002) (“[A]rticle 2, Section 8 has historically been construed as imposing limits on search and seizure consistent with the prohibitions of the Fourth Amendment.”); People v. Roberts, 283 Cal. Rptr. 3d 357, 395 (Cal. Ct. App. 2021) (“Our high court has repeatedly stated, in the context of search and seizure, that the privacy protected by Article I, section 1 of the California Constitution is no broader than the privacy protected by the Fourth Amendment or by article I, section 13 of the California Constitution.”).
25✕ See, e.g., McKelvey, 474 P.3d at 26–27 (“Alaska law is more likely to recognize that an expectation of privacy is reasonable, given our express constitutional protection for the right of privacy.”).
26✕ See, e.g., id. at 21–27.
27✕ Compare State v. Berniard, No. 47726–2–II, 2017 Wash. App. Lexis 83, at *4–5 (Jan. 18, 2017) (holding defendant had a protected privacy interest in toll and calling records, and account and subscriber information under the greater protections offered under state’s constitutional privacy provision), with United State v. Perrine, 518 F.3d 1196, 1204 (10th Cir. 2008) (“Every federal court to address this issue has held that subscriber information provided to an internet provider is not protected by the Fourth Amendment’s privacy expectation.”).