Page 13 - Sheppard Mullin Eye on Privacy 2018 Year in Review

CONSUMER PRIVACY
Live Free or Die Trying—New Hampshire Voters Enshrine Right to Privacy in State’s Constitution
Posted on November 19, 2018
On Election Day 2018, in the State that boasts the official motto of “Live Free or Die,” over 80% of New Hampshire voters overwhelmingly approved an amendment to the State Constitution enshrining an explicit “right to privacy” to New Hampshire residents. Question 2 on New Hampshire ballots asked voters to approve (or reject) the following language to the New Hampshire Constitution: An individual’s right to live free from governmental intrusion in private or personal information is natural, essential, and inherent. Having received the required approval of over two-thirds of voters, the language of Question 2 will be added as Article 2-b (“Right to Privacy”) to the New Hampshire Constitution.
As in many other states, no express right to privacy previously existed in New Hampshire, instead the Constitution of the state protected only every resident’s “right to be secure from all unreasonable searches and seizures of his person, his houses, his papers, and all his possessions.” But this provision has been applied primarily to police practices. The new Article 2-b is designed to provide much broader protections of an individual’s privacy.
New Hampshire joins ten other States that have enacted similar provisions in their State Constitutions explicitly protecting individuals’ right to privacy: Alaska, Arizona, California, Florida, Hawaii, Illinois, Louisiana, Montana, South Carolina and Washington. Unlike New Hampshire’s new provision, some of the constitutional rights of privacy in other States apply beyond governmental intervention. See, e.g., Alaska Const. art. 1, § 22 (“The right of the people to privacy is recognized and shall not be infringed.”); Hawaii 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.”). In short, the text of New Hampshire’s right to privacy does not go as far as other States.
PUTTING IT INTO PRACTICE: With the amendment’s passage just two weeks ago, it will take time to determine how New Hampshire courts interpret the meaning and scope of Article 2-b. 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. At the same time, it is possible that courts (and government officials) will find the language of Article 2-b vague and difficult to apply in practice on a case-by-case basis. Time will tell.
Ninth Circuit Opens Door for More Expansive Meaning of ATDS in TCPA Cases
Posted on November 14, 2018
In the recent case of Marks v. Crunch San Diego, LLC, 904 F.3d 1041 (9th Cir. 2018) the Ninth Circuit broadly interpreted the TCPA’s definition of automatic telephone dialing system (often referred to as ATDS) to include devices with the capacity to dial stored numbers automatically. The device at issue in Marks is called the “Textmunication” system, which the Court described as “a web-based marketing platform designed to send promotional text messages to a list of stored telephone numbers.” The defendant, Crunch Fitness, had communicated with current and prospective gym members by sending them text messages via the Textmunication system. The plaintiff, Jordan Marks, had signed up for a gym membership and subsequently received three text messages over an 11-month period. Marks sued Crunch Fitness and alleged that the text messages violated the TCPA. The district court granted summary judgment in favor of Crunch Fitness after concluding that the Textmunication system did not constitute an ATDS because it presently lacked a “random or sequential number generator” and did not have the potential to add this feature.
The Ninth Circuit reversed. On appeal, the Ninth Circuit analyzed whether, in order to be an ATDS, a device must dial numbers [1] generated by a random or sequential number generator or [2] if a device can be an ATDS if it merely dials numbers from a stored list.” Finding the statutory language ambiguous, the Court looked to the legislative history
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