No Place for Strict Katz in New Hampshire's Right of Privacy

Abstract

In November 2018, the citizens of New Hampshire voted to add Part I, Article 2-b, Right of Privacy, to the state constitution. The provision states: “An individual’s right to live free from governmental intrusion in private or personal information is natural, essential, and inherent.” One question the amendment raises is how it will be applied in the search and seizure context, and whether the Katz two-pronged analysis will be used to determine whether an expectation of privacy exists.

Relying upon textual differences between New Hampshire’s protection against unreasonable searches and seizures and Part I, Article 2-b, as well as the legislative history of the new privacy provision and the interpretation and application of other similar state privacy clauses, this article asserts that the New Hampshire legislature intended for Part I, Article 2-b to afford a broader, more inclusive protection of privacy than that of Part I, Article 19. Therefore, merely transplanting the strict Katz analysis to Article 2-b would not respect the purpose of the new constitutional provision.

Keywords: right of privacy, search, seizure, fourth amendment, state constitution

JEL Classification: K10, K14