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N.H. Legislation 
Focused on Privacy

Friday, January 22, 2016
West Lebanon — A trio of bills introduced in the New Hampshire House by a Republican lawmaker known for his concerns about privacy rights has won the backing of the American Civil Liberties Union of New Hampshire.

But some Upper Valley police chiefs, asked to comment on the bills, said language in the legislation is too broad and far-reaching.

State Rep. Neal Kurk, R-Weare, said the bills he filed would protect people’s rights to keep property, personal information and DNA private.

The American Civil Liberties Union of New Hampshire endorsed the bills on Wednesday, but some police aren’t as enthusiastic.

“I think, first of all, it’s poorly written and not something I would support,” Claremont Police Chief Alex Scott, who has a law degree, said of one bill.

Kurk, chairman of the House Finance Committee, has previously filed bills on police body-cameras, drones, and keeping data about individual students private and at the local level.

Under the Fourth Amendment, Americans are protected from unreasonable searches and seizures. But under the so-called “third-party doctrine,” established in two Supreme Court cases in the 1970s, the high court “held that people are not entitled to an expectation of privacy in information they voluntarily provide to third parties,” such as bank records and telephone call records, according to the Congressional Research Service.

But more recent court cases have attempted to flesh out what privacy protections apply to “second-party” information such as what might be stored in cell phones and GPS devices.

Kurk has proposed his legislation in response to such issues.

Under one bill, police would be required to obtain a search warrant to access “private information” given to service providers — third party information — including that shared with phone and cable companies.

The bill would also require law enforcement officials to obtain a warrant to see social media communications, including content on Facebook and Twitter, with some exceptions, such as if they are investigating misconduct on the part of government employees or contractors or if there is an emergency involving severe injuries or significant property damage.

Federal courts hold that general information people give to companies is not private, Kurk said, though the content of messages exchanged through those companies, such as emails, is.

“This bill says ‘Not in New Hampshire,’ ” he said in a phone interview Thursday.

When he signs up for heating oil or another contracted service, Kurk said, he doesn’t want those companies selling his information to marketers or providing it to law enforcement without his permission.

The two other bills would protect “personal materials” from government intrusion, except for at crime scenes, and establish that people own their genetic material and information.

On television police and crime dramas, Kurk said, law enforcement officials are always trying to skirt laws and obtain DNA evidence without a suspect knowing it. If the DNA bill becomes law, “they could ask me for (a genetic sample), but can’t force me to give it to them unless they have a warrant.”

Scott takes issue with Kurk’s bill on personal information, and said it purports to remedy a problem that’s already been resolved through the court system.

When a police officer thinks of the Fourth Amendment, Scott said, “person, papers and personal effects” all require a search warrant. In the context of social media, he said cell phones are considered like portable filing cabinets and also require a warrant before police can seize its information.

“This tries to go beyond that,” he said of Kurk’s legislation.

He also thinks if implemented, it would lead to a “fair amount of confusion” and litigation.

Scott and other police chiefs worry that Kurk’s proposal would place information that is shared publicly on social media off-limits to law enforcement.

“It’s pretty vague and the general rule is, ‘That which you make open and available to the public is open and available to police,’ ” he said.

Lebanon Police Chief Richard Mello also said the bill’s language is problematic and vague in referring to personal information.

For in-depth investigations into anyone, Mello said, his department requests a search warrant or grand jury subpoena. Land line, cell phone and cable information all require a warrant, he said.

But Mello worried about how the department would comply with the bill, especially if it would ban officers from searching the public domain.

Plainfield Police Chief Paul Roberts said the bill probably wouldn’t impact his department. For any search of social media, he finds requesting a warrant easier than trying to find a way around.

The bill regarding personal information would only apply to material going through third-party providers, Kurk said.

Devon Chaffee, executive director of the New Hampshire ACLU, said there’s still room for discussion about the bills’ language. All three were referred to the House Judiciary Committee after being introduced this month, but haven’t been scheduled for a hearing yet.

Kurk, Chaffee said, is taking New Hampshire to the forefront of states working to protect the privacy rights of its citizens.

“I think these bills are really taking a look at an area of law that is constantly changing,” Chaffee said.

Tim Camerato can be reached at tcamerato@vnews.com or 603-727-3223.




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