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Privacy – Initiative Petition for a Constitutional Amendment for Privacy
Timing & Support
Good news! We were certified for a constitutional amendment on privacy in 2022, and will strengthen the proposal, resubmit for approval, and build support for a signature drive to gather the necessary signatures to place the proposal on the ballot for Massachusetts voters as well as popular support to pressure legislators. We also would like to get some expert feedback. Most importantly, we need to build our organization for success. This is why we are delaying the petition – including in 2023 – because we need to build an organization and support that can handle collecting 100,000 plus signatures while also lobbying legislators to provide the necessary votes to move it forward.
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We need strong support because we need the finances and volunteers to gather over 100,000 signatures. Because Massachusetts legislators also need to vote in support, and can propose alternatives, we need strong voter support to persuade legislators to vote in support of privacy rights.
A successful petition initiative would not be voted on until 2026, after legislators approved it in 2 legislative sessions.
Attorney General Review
The attorney general’s office reviews all petitions to insure compliance with state laws and proper legal form. As part of the process, the attorney general’s office prepared a summary which can be accessed online here and which is also posted below. We felt that there were some areas that could be strengthened and look forward to getting feedback and making changes that voters can support. One of the areas we felt needed to be improved was around what information businesses could collect. This needs some attention, because we don’t want businesses to sell information gathered or collect information that they don’t need. We’d also like to define more carefully what is a ‘compelling’ state interest.
Summary
This proposed constitutional amendment would amend the Massachusetts Declaration of Rights to declare that the people have a right of privacy that may not be infringed absent a compelling governmental interest and that such interest may not be shown lightly or by needs of convenience or financial considerations. This right of privacy would extend outside the home and violations could be redressed through a private right of action that could not be replaced by arbitration.
Under this amendment, the state Legislature would be required to limit the extent to which the Commonwealth and private companies could gather data, to prohibit sharing of data, and to require the timely destruction of data absent consent of the adult data subject. The Legislature would be required to prohibit utilities from making service delivery contingent upon loss of consumer privacy and to prohibit companies from using gathered data to create profiles without the subject’s consent absent a compelling state interest.
This amendment would define “data” to include location tracking, photographs, and biometric data such as voice audio, fingerprints, gait recognition, and keystroke dynamics as well as observed and inferred data. Other than fingerprinting for employment where reasonably justified, this amendment would direct the Legislature to ensure that provision of biometric data not be required as a condition of employment or receipt of utilities or other necessary services.
The amendment would provide that it could not be construed to limit access to public records, public meetings, information relevant to public officials’ conflicts of interest, residential and commercial contact information contained in the telephone book, or archived materials, nor could it be construed to restrict the liberty of the press.
The amendment provides that it would take effect immediately upon its passage and that, if any of its parts were declared invalid, the other parts would stay in effect.