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Montana Viewpoint: The right to be left alone

Jim Elliott

In an age where people are falling all over themselves to divulge their most personal information to the world at large through social media, and where people willingly give their permission to internet search engines like Google to gather and sell their personal data, it seems almost absurd to worry about the right to privacy.

But the difference in giving up your privacy and having your privacy taken away is significant, and that is why it is frightening to me to see elected officials in Montana and elsewhere belittle its importance and plot to do away with it for the citizen.

For the citizen, but not the government, because just as it becomes easier for the government to know about us, it is being made more difficult for us to know about government. Montanans have a constitutional right to examine public documents of elected officials and public boards, but those same officials and boards make it difficult for us to examine them in a timely manner, and then charge exorbitant rates for providing the information.

Why do elected officials need to guard their non-existent “privacy” more closely than they guard ours?

Montana’s Constitution is unique in the number of specific rights given to her citizens. There are 35 sections in Article II, “Declaration of Rights” of the Montana Constitution. Almost all of them serve the purpose of defending the Montana citizen from governmental overreach. The right to privacy is only one of them, but it may be the most important of all.

It is the Right to be Let Alone.

Fifty years ago, the Bill of Rights Committee of the Montana Constitutional Convention undertook the task of writing one of America’s most powerful documents protecting individual liberties. Its chairman was Wade Dahood, a Republican delegate from Anaconda. The privacy clause was introduced by Delegate Bob Campbell, D-Missoula.

The ability of businesses and governments to secretly collect data on individuals was then just beginning to flourish through methods such as wiretapping and snooping, techniques that are quaint by today’s standards. It was concerns like that, and the recent 1965 U.S. Supreme Court decision in Griswold v. Connecticut, that prompted the Montana Constitutional Convention to establish a specific privacy provision in our constitution.

Griswold centered on an 1879 Connecticut law prohibiting married adults from procuring or using any medicine or device intended to prevent pregnancy. It prohibited seeking advice on such matters and prohibited giving advice as well.

While there is no explicit provision protecting privacy in the U. S. Constitution, the court found sufficient language in the Constitution supporting such a right and struck down Connecticut’s law.

“As government functions and controls expand, it is necessary to expand the rights of the individual,” said Dahood, quoted in an editorial of the February 3 rd , 1972, Butte Standard.

Importantly, the right to privacy in Montana is purposely not extended to corporations. It is an individual right to privacy. Nor is it an absolute right, it is subject to limitations if there is a compelling state interest. It is in the hot seat today because it has been the basis for deciding abortion rights rulings and has stoked the ire of the pro-life constituency.

That is understandably controversial. But there is much more to the right to privacy than that. Larry Elison wrote in the 1987 Montana Law Review that it was clear from the debates that “… the right was intended to protect citizens from illegal private action and from legislation and governmental practices that interfered with their autonomy to make decisions in matters that are generally considered private.”

Now there are elected officials in Montana who would like to diminish the Right to Individual Privacy.

Let us be clear: Those trying to destroy the Montana Constitution are not our friends and neighbors innocently trying to do what’s right. It is our state government officials acting in their official capacity, using the power of their office who are undermining the rights of Montana citizens.

Every elected person in the state of Montana has sworn an oath to defend our state Constitution, if they want to violate that oath, they need to tell us why.