State Law as a Source of Privacy Law

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State Constitutions

State constitutions are the documents that form the individual state governments and are the highest form of law for state governments.

• apply to the people who live in a particular state
• Eleven state constitutions recognize a right to privacy:
  • Alaska, Arizona, California, Florida, Hawaii, Illinois, Louisiana, Montana, New Hampshire, South Carolina, and Washington
  • These state’s constitutions provide clear privacy guarantees
    • E.g.,
      • Montana state constitution reads, “The right of individual privacy is essential to the well-being of a free society and shall not be infringed without the showing of a compelling state interest.”
      • California state constitution notes, “All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.”
        • California has been a leader among states in enacting laws that recognize and protect the privacy rights of its citizens
      • State of New York was the first state to add a right of privacy into its statutes
        • after Warren and Brandeis published their article “The Right to Privacy”

State Case Law

• Other states recognize right to privacy through their case law
  • E.g., In 1905, the Georgia Supreme Court recognized a right to privacy
    • making it the first state to recognize, through case law, a right to privacy implicit in its own Constitution

State Laws

• State governments also create laws to protect data
  • E.g.,
    • all 50 states, the District of Columbia, Guam, Puerto Rico, and the Virgin Islands have enacted breach notification laws
      • require an organization to notify state residents if it experiences a security breach that involves the personal information of the residents
• States also have industry-specific laws that protect certain types of data, such as financial, health, and motor vehicle information
  • E.g., As of 2022, 26 states have enacted laws to prevent employers from asking employees for their social media passwords