Golden State Sword: The History and Future of California's Constitutional Right to Privacy to Defend and Promote Rights, Justice, and Democracy in the Modern Digital Age

Abstract

The importance of state law and constitutions to protect and promote rights has become even more salient given the reality of a U.S. Supreme Court that is increasingly hostile to privacy and other civil rights. As we face a period of both critical social justice fights and rapid technological change, now is the time to ensure that the California constitutional right to privacy is widely understood and to fight for it to be used as robustly as intended to defend and advance rights, justice, and democracy in the modern digital age. 

The California constitutional right to privacy was forged by intersectional social justice movements and integrated advocacy and passed by the voters in 1972 to be a modern right to privacy-to equally address both informational privacy and autonomy privacy and protect against privacy intrusions by both government and private parties. At the core of the California constitutional right to privacy is an allocation of power. In 1972, the California legislature and the people of California recognized that the combination of government, corporate, and technological power was going to stack the decks against people's rights. The Privacy Amendment's legislative history, both as it initially moved through the California legislature, and then the ballot argument itself, makes it clear that the California constitutional right to privacy was passed to give people the power in how privacy questions were resolved in the modern digital age. 

But this Golden State Sword of the California constitutional right to privacy has been largely latent for the past thirty years, not being used to its full potential to protect against government surveillance and surveillance business models. This Article tells an important story about how the clarion call that the Privacy Amendment's passage served on the courts and policymakers has been improperly muted in recent decades, and how it must now regain its full strength to really work for the people. 

This Article contributes to the literature in three ways. First, it recontextualizes the historical and legislative history of the California constitutional right to privacy and how it can inform innovative strategies to drive justice in the digital age. Second, it contributes deep legal and policy analysis of the successes and failures in using the constitutional right to privacy to defend and promote rights in the digital age and assesses the sociopolitical climate that has influenced these opportunities and challenges. Finally, it charts a path forward for what should happen in the courts and legislature to fully respect the fundamental right to privacy and properly protect rights, justice, and democracy in the modern digital age. 

Keywords: privacy, surveillance, technology law, surveillance capitalism, government surveillance, information privacy, digital privacy, California, constitution, state constitution, right to privacy, public interest technology, digital rights, free speech, integrated advocacy, movement lawyering, history, sociolegal, social change, Big Tech, constitutional law