... And Privacy."

By Bob Egelko
     
Nearly 40 years ago, a young legislative staffer in Sacramento named Vic Fazio was drafting bills to shed light on closed-door government meetings and sealed public documents. Even while his work was forming the basis for a series of sunshine laws, Fazio found himself wondering whether disclosure could go too far.
      "Openness was a good thing. But it also left people open to exploitation," Fazio recalls thinking. He had learned of commercial enterprises that were buying and selling the newly public records, and he studied the writings of Columbia University law professor Alan Westin, an early advocate of personal privacy.
      So Fazio--who would later serve three years as a Democratic assemblyman and two decades as a member of Congress--approached his boss, veteran Republican Assemblyman Bill Bagley, with a proposal to write privacy into the state constitution.
      That, it seems, was the modest origin of a two-word amendment to the list of inalienable rights guaranteed by article I, section I of the California Constitution--a list that now includes "enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness and privacy. (Nine other states--Alaska, Arizona, Florida, Hawaii, Illinois, Louisiana, Montana, South Carolina, and Washington--also have privacy amendments in their constitutions.)
      There were other contributors to the California amendment besides Fazio, including constitutional scholar Anthony Amsterdam and now-deceased lawmakers Ken Cory and George Moscone. Accounts vary on who exactly did what. But all agree there was remarkably little controversy when the proposal breezed through the Legislature and won approval by 63 percent of the voters in the November 1972 election.
      In the following decades, the state Supreme Court invoked privacy rights to prohibit police spying on campuses, legislative restrictions on abortions for poor women and minors, and a city's limit on the number of unrelated people who may live in a home. But in recent years privacy has taken a battering from purveyors of digital technology and guardians of public security. With surveillance cameras on street corners, tracking and data mining on the Internet, drug testing and email monitoring by employers, and government agents infiltrating meetings and tapping phones without warrants, even an inalienable constitutional right seems to be a thin shield.
      So it came as something of a jolt in May when the state Supreme Court overturned an initiative statute enacted by voters in 2000 that allowed only opposite-gender partners to wed. The 121-page opinion gave California's privacy right a new dimension, declaring that marital rights for same-sex couples derive from it. Writing for a 43 majority, Chief Justice Ronald M. George announced that "the right to marry is an integral component of an individual's interest in personal autonomy protected by the privacy provision of article I, section I." (In re Marriage Cases, 43 Cal. 4th 757, 818 (2008).)
      The right to marry isn't as obvious a component of privacy as, for instance, the right to keep the government from reading your mail or peeking into your bedroom. But as George pointed out, California has defined privacy broadly to include a "right of intimate association" that should be free from unnecessary intrusion (43 Cal. 4th at 814).
      Today, the chief justice wrote, that right includes "the opportunity of an individual to establish--with the person with whom the individual has chosen to share his or her life--an officially recognized and protected family possessing mutual rights and responsibilities and entitled to the same respect and dignity accorded a union traditionally designated as marriage." (43 Cal. 4th at 781.)
      Legally, what's likely to be the ruling's most enduring legacy came elsewhere in the opinion. That was the majority's conclusion that the historical and baseless persecution suffered by gays and lesbians entitles them to the same strict scrutiny of discriminatory laws that California assigns to laws that discriminate on the basis of race, gender, or religion. It was the first such ruling by any state supreme court, and it has the potential to topple numerous state and federal laws if it is adopted in other states. And George's designation of antigay discrimination will survive even if California voters reenact the ban on same-sex marriage by constitutional amendment in November.
      The heart of the ruling--its focal point and its emotional center as well--was the privacy-based right to marry the person of your choice, no matter what the neighbors think or the state decrees. The court's analysis will be attacked on legal, political, and moral grounds. But its underlying perspective--a live-and-let-live ethos in a diverse culture-seems fittingly Californian.
      J. Anthony Kline, presiding justice of Division Two of the First District Court of Appeal, says that for the people most affected by the ruling, privacy and autonomy are probably more important motivations than equality anyway. It was Kline's dissent from a 21 appellate decision upholding the restrictive marriage law two years ago that first spotlighted the privacy issue (In re Marriage Cases, 143 Cal. App. 4th 873, 943-984 (2006)).
      The main reason most same-sex couples want the right to marry, Kline contends, is "not just because opposite-sex couples have it, but because the denial to them of the ability to define who they are and express themselves through the intimate association our society prizes most highly is not just disrespectful but dehumanizing."
      A privacy analysis, he says, also brings into focus the central claim of the gay-marriage opponents: that same-sex marriage represents a change in the nature of marriage, and thus it falls outside of the fundamental right to marry that courts have recognized. Through the lens of privacy, Kline says, a court must identify the attributes of traditional marriage that the constitution protects, and then decide whether those attributes also apply for same-sex couples--a question that both he and Chief Justice George answered affirmatively.
      However, the plaintiffs in the marriage cases (several same-sex couples and the city of San Francisco) gave little weight to privacy in their legal arguments. Instead, they stressed the law's discriminatory nature and drew parallels with the ban on interracial marriage that the court had struck down 60 years ago (Perez v. Sharp, 32 Cal. 2d 711 (1948)).
      "The equal protection argument is pretty straightforward," explains Therese Stewart, the chief deputy city attorney of San Francisco whose legal team represented the city. "Are you treating people equally, or are you not? And if not, what is the level of scrutiny?"
      Stewart agrees with Kline that the autonomy aspect of privacy encompasses the right to make personal decisions for oneself, without government interference, about intimate and family relationships that profoundly affect one's life--including decisions about whom to marry. But she says the privacy-based rationale for fundamental rights is regularly attacked as a pretext for a judge's policy preferences, and it is hard for the average person--and even many judges--to understand.
     
      For the authors of the 1972 constitutional amendment, same-sex marriage wasn't even a blip on the screen. Same-sex sodomy, after all, was still a crime in California until 1975, when Assemblyman Willie Brown sponsored its repeal. But there were more ambitious goals behind the privacy amendment than its sponsors chose to emphasize publicly.
      Though Watergate was not yet a household word--the same voters who approved privacy rights in November 1972 also reelected President Richard Nixon--newspapers were carrying headlines about Pentagon surveillance of antiwar groups, a secret program of political infiltration and disruption called COINTELPRO, and the expansion of government databases aided by advances in computer technology. So sponsors of the ballot measure stressed the dangers of uncontrolled data collection by both government and business, warning in their arguments that "computerization of records makes it possible to create 'cradle-to-grave' profiles of every American."
      As Fazio recalls, "It was the dawn of the information age. But people understood how effectively public records could be used. Whether it was because they didn't want direct mail or salesmen calling their homes, most people, when asked, 'Do you want your privacy protected?' responded, 'Why not?' "
      For the American Civil Liberties Union--one of the forces behind the amendment--an equal but less public concern was protecting a women's right to choose an abortion. The U.S. Supreme Court's blurry definition of a privacy right in Griswold v. Connecticut (381 U.S. 479 (1965)) was being tested in Roe v. Wade, which had just gone through a second round of arguments (410 US 113 (1973)). California's relatively liberal abortion law, signed in 1967 by Gov. Ronald Reagan, had been broadened further by the state Supreme Court (People v. Belous (71 Cal. 2d 954 (1969)). But the legal outlook for abortion rights was uncertain, and a statewide debate was just the kind of controversy that could derail a seemingly innocuous ballot measure linked to the emotional issue.
      Ken Cory, an Orange County assemblyman and future state controller, was the measure's chief legislative author, and George Moscone, the future San Francisco mayor, was the Senate floor sponsor. They guided the measure through the Legislature with two-thirds majorities in each house, steering clear of any focus on abortion.
      The ACLU then recruited Anthony Amsterdam, a professor at Stanford Law School who now teaches at New York University, to draft the ballot arguments. Amsterdam's arguments did not mention abortion, yet they planted the seeds of legal theories for future courts to harvest by declaring that a right to privacy would ward off unwanted invasion of "our homes, our families, our thoughts, our emotions, our expressions, our personalities, our freedom of communion, and our freedom to associate with the people we choose."
      Anti-abortion groups were silent; the only ballot argument offered against the constitutional amendment speculated that the measure would make it easier for welfare applicants to hide their income. But for anyone familiar with the law, Justice Kline says, "it was clear that it [Amsterdam's ballot argument] was talking about Griswold."
      The payoff for advocates of the amendment came years later, when the state Supreme Court invoked the right to privacy in a ruling that guaranteed poor women continued access to abortions under Medi-Cal, overriding more than a decade of annual budget cuts (Committee to Defend Reproductive Rights v. Myers, 29 Cal. 3d 252 (1981)). The ruling provided the foundation for a later decision, written by Chief Justice George, that overturned a parental consent law for minors' abortions (American Academy of Pediatrics v. Lungren, 16 Cal. 4th 307 (1997)). As a consequence of the court's interpretation of privacy rights, "California women have far more freedom in childbearing decisions than women in any other state," says Margaret Crosby, an ACLU attorney who argued both cases.
      Before the Medi-Cal ruling, the court had relied on the autonomy aspect of privacy when it struck down a Santa Barbara ordinance--similar to laws in 36 other cities, including Los Angeles and San Diego--that prohibited more than five unrelated people from living together (City of Santa Barbara v. Adamson, 27 Cal. 3d 123 (1980)).
      The court had also used privacy rights to redefine the boundaries between the individual and the state. In White v. Davis (13 Cal. 3d 757 (1975)), for instance, the justices ruled unanimously that undercover police surveillance of college classrooms and student organizations violated privacy as well as free speech. They held that a serious breach of privacy could be justified only by a compelling government interest and the absence of less-intrusive alternatives.
     
      In 1994, however, a more conservative court majority stepped away from that standard in a ruling that upheld drug testing of college athletes at championship contests and postseason bowl games. Chief Justice Malcolm Lucas wrote that once a plaintiff shows a reasonable expectation of privacy and a serious infringement, those interests must be weighed against any "legitimate and important competing interests" on the other side, which need not be the least-intrusive means available (Hill v. Nat'l Collegiate Athletic Ass'n, 7 Cal. 4th 1 (1994)). The court didn't specify how the balance would be measured, and the task might be even more difficult today. As government and corporate data-miners become bolder using new technologies, citizens' former expectations of privacy may seem a lot less reasonable. (See Vo v. City of Garden Grove (115 Cal. App. 4th 425 (2004)), upholding mandatory installation of video-surveillance cameras at Internet cafes.)
      The three-part "Hill test" posed by Chief Justice Lucas proved to be a watershed in state privacy law. "That was when we lost our privacy rights," says Cliff Palefsky, a partner with the plaintiffs employment firm of McGuinn, Hillsman & Palefsky in San Francisco. "Employees almost never win balancing tests."
      Particularly since Hill v. NCAA, California's privacy rights have been limited in the workplace. As Palefsky notes, courts have allowed employers to restrict employee speech as long as the employers don't discriminate on the basis of political opinion; to enforce dress codes as long as they treat both genders equally; to forbid dating between managers and subordinates (Barbee v. Household Auto. Fin. Corp., 113 Cal. App. 4th 525 (2003)); and to use surveillance cameras as long as they stay out of restrooms and dressing rooms. Private messages on workplace computers also are subject to surveillance and discipline. "It is the private employer's resources being used," explains Derek Shaffer, executive director of the Stanford Constitutional Law Center. As a result, he says, employers can act to protect themselves from liability for an employee's harassing emails.
      The privacy law doesn't offer much shelter for personal computer users, either. Although federal law protects the contents of emails, nearly anyone who browses the Web inadvertently collects "cookies"--tiny text files containing identifying information--that allow websites to track and profile visitors, and then target them for advertising. And last November, Facebook, a social-networking site, tested the boundaries of permissibility with a feature called SocialAds, providing advertisers with access to 50 million Facebook user profiles. Advertisers designed customized ads for individual users, and their online friends, on the company's website. But public pressure forced the company to let its users opt out of the SocialAds system.
      Privacy advocates have urged the Federal Trade Commission to establish a "do not track" list for personal computer users, similar to the telemarketing "do not call" list. But to date, courts haven't joined in the controversy. It's hard to imagine a California court finding a "reasonable expectation of privacy" in the same material that some users of social-networking sites submit voluntarily for distribution.
      Nevertheless, the court in 1994's Hill v. NCAA did apply the right to privacy against a private entity. In view of the ballot arguments a generation earlier against business data-collecting, the ruling shouldn't have been surprising. But it marked a departure from federal constitutional law, which protects only against incursions by the government.
      The Lucas Court cautioned in Hill that it might be harder to prove a privacy case against a private intruder, because the plaintiff might have the option of doing business elsewhere or staying at home. Still, the Hill ruling opened the door for challenges to drug testing by private employers, and to search policies that would be immune in federal court and the courts of most other states. A later case involving municipal employees established standards for drug testing in public workplaces as well: Screening can be required for job applicants but not for current employees, except for those in safety-sensitive positions or after accidents (Loder v. City of Glendale, 14 Cal. 4th 846 (1997)).
     
      Though physical surveillance seems an obvious arena for privacy protection, there is still no right to keep one's public actions confidential when they come within range of a city's video monitor or a store's closed-circuit camera. But political gatherings are different; undercover officers' infiltration of nonviolent rallies or meetings would seem to violate the court's anti-spying standard in White v. Davis. That's the way former Attorney General Bill Lockyer interpreted the law in a manual distributed to local police agencies in 2003 after revelations that officers in several California cities--aided in some instances by a new antiterrorism center in Lockyer's office--had monitored political protests. The manual advised police that they need reasonable suspicion of lawbreaking before they conduct political surveillance or keep files on individuals. But an ACLU survey in 2005 found that few police or sheriff's departments in California were aware of the manual or its policies.
      According to Stanford's Shaffer, state privacy protections are even weaker in criminal cases. One reason is a 1982 ballot initiative that allowed prosecutors to introduce evidence from searches that meet federal probable-cause standards, even if they violate the state constitution. Another is the tendency of the courts to defer to the needs of law enforcement, reflected in rulings that uphold the expansion of state and federal DNA databases. A third factor is the increased scope of activity for federal agents, who are immune from state laws when they gather evidence and who have been freed from previous restrictions on political monitoring by Justice Department policies adopted after the terrorist attacks of 2001.
      State and local police who cooperate with federal agents in joint terrorism task forces, however, are bound by the restrictions of California law. ACLU attorney Mark Schlosberg says his organization tries to monitor their compliance. Although state privacy laws have no authority over the Bush administration's clandestine electronic surveillance of communications between Americans and suspected foreign terrorists, such activity is theoretically subject to the warrant requirements of the Fourth Amendment and the Foreign Intelligence Surveillance Act. The ACLUs of California sued AT&T and Verizon under state law for disclosure of phone records to the National Security Agency without written consent or legal process. Though some of the court challenges have been thwarted due to secrecy, the consolidated cases against AT&T and Verizon continue to move through the Northern District (In Re National Security Agency Telecommunications Records Litigation, 444 F. Supp. 2d 1332 (J.P.M.L. 2006)).
      Still, privacy rights remain politically popular in California and have made some headway in the Legislature. According to attorney Nicole Ozer, ACLU technology and civil liberties policy director, recent successes include the nation's first law requiring notification of consumers whose financial or medical information has been exposed by security breaches; a ban on publicly disclosing an individual's Social Security number and on requiring transmission of a Social Security number over the Internet without encryption or a secure connection; a requirement that commercial websites of companies that do business in California post prominent privacy policies; and a prohibition against requiring, forcing, or compelling any individual to have an identification device, including a radio frequency identification (RFID) tag, implanted on his or her body. Another law, passed in 2000, created the nation's first state Office of Privacy Protection, designed to help consumers cope with identity theft and other privacy problems.
      Ozer says that in legislative debates--and often in the text of proposed privacy bills--lawmakers invoke California's constitutional right to privacy. In recent years, she says, "there may not have been as much action in the courts in support of privacy, but its legacy lives on in the Legislature."
      Of course, the reach of the state legislation has limits. In 2005, for instance, a federal appeals court largely overturned a law that required banks to give customers notice and a chance to object before sharing their financial information with affiliated companies. And Gov. Arnold Schwarzenegger vetoed a bill to restrict RFID use on state-issued identity cards and another that would have made retailers tighten security for credit card data.
      Voters in California may exercise their own vetoes in November when they consider two ballot initiatives for constitutional amendments, one that would ban same-sex marriage once again, and another to require parental notification for minors' abortions.
      As Chief Justice George put it in a recent interview, "A lot of things that represent progress also represent threats to privacy." Yet, as George's majority opinion in May shows, the state's constitutional right of privacy still has substance--and some substantial allies. The same court that read the constitutional guarantee of private autonomy to include the right to marry a partner of either gender will also interpret the new initiatives, if they pass, and decide whether the invalidation of same-sex unions applies to thousands of weddings performed between June and this November. And the court is considering a suit by football fans who have challenged pat-down searches outside stadiums (Sheehan v. San Francisco 49ers, 153 Cal. App. 4th 396 (2007), hearing granted Oct. 10, 2007 (No. S155742)). That case could set new ground rules for some types of privacy claims by consumers against private businesses.
      So, after 36 years on the books, what does California's right to privacy amount to? Certainly not what the authors promised in their ballot arguments: a "legal and enforceable right of privacy for every Californian" that would provide "effective restraints on the information activities of government and business" and yield "only when there is compelling public need."
      If that was ever a realistic expectation, it probably is no longer. The control citizens might once have exercised over their communications and interactions with others has been weakened, if not destroyed, by technological advances and obsessions with security both public and private. Attending a meeting, sending an email, making an overseas phone call, contacting a coworker, even just walking down the street--any of these activities may come to the attention of someone in authority, and there's little a court or a ballot measure can do about it. Even rights that exist on paper, like freedom from political surveillance, may not amount to much in practice.
      Nevertheless, the constitutional right to privacy seems to be evolving--however fitfully, subject to court interpretations and voter backlash. It is becoming a more subtle instrument, a sort of personal cloak for concerns closer to home. Like who we live with, or whether we have children, or how we define our family.
      Article I, section I is no armored fortress to keep Californians' privacy intact. But it seems to have furnished a curtain we can draw around some parts of our lives.
     
      Bob Egelko is legal affairs reporter for the San Francisco Chronicle.
     

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