By Hannah G. Babinski, Class of 2024
It is a nightmarish scenario: a woman arrives home from work one evening, she unlocks the front door, kicks off her shoes, and walks into the living room of her still home—her refuge—only to find that someone has been inside her house without her knowledge. Her computer screen displays her bank statement and a copy of her credit report, and her social security card rests on the kitchen counter near an album of personal photos. Her address book shows obvious signs of disruption, and even her diary lies open on the bed, clearly having been read by the unidentified intruder. It is clear to the homeowner that the intruder has long since exited the home, but the feeling of exposure and violation lingers with the victim well after the concern of physical threat has passed. Even in the absence of damage to the home or theft of any real or personal property, to most Americans, this intrusion alone is enough to inspire outrage and a deep-seated feeling of unease. But what happens if we remove the aspect of the physical intrusion into the home in the scenario and replace the intruder with the state itself? The abuse and disregard of the victim’s privacy remain, and as the law currently stands, the victim is left without sufficient grounds for recovery and remedy against the violation as she would in tort, if the intrusion resulted from the acts of a private party.
This possible state violation of privacy concerning an individual’s information extends to a person’s online presence and his or her data shared electronically or even stored on a smartphone. Recently, Democratic Representative Margaret O’Neil of Maine sponsored a bill to be heard by the state’s Judiciary Committee on Thursday, January 20, 2022, that would amend the state’s constitution to add the right to privacy as an inalienable right. This concept of a right to privacy is not expressly found within the federal Constitution of the United States and is only expressly found within the state constitutions of thirteen states, not including Maine unless Maine’s Judiciary Committee votes to pass the pending bill.
A change concerning the neglected protection of privacy of not only Mainers but American citizens as a whole is necessary now more than ever as the United States continues its trajectory into uncertainty that accompanies the astronomical and unprecedented alterations that advances in technology are creating in modern society. As technology continues to develop and become an omnipresent influence in the lives of people throughout the nation, our legal protections and focuses must, likewise, adapt to fit the challenges of the new electronic world before us. For example, enhancements in technology, including advancements regarding video surveillance, facial recognition software, and smartphone satellite tracking, are giving our legal system whiplash of sorts, and it is apparent that the benefits of these advancements also invite various novel problems that the original Framers of our government could never have fathomed in their wildest dreams.
As members and future members of the legal community, it is our duty to address the challenges of these changing times. In that regard, if Maine elects to follow in the footsteps of the thirteen states that have made strides to protect the privacy of their citizens through a constitutional amendment, Maine would be among the forward thinkers of the nation with an eye towards the existing issues and future progress as it rightfully should be.
[1] Randy Billings, “‘Inevitable Digital Intrusion’ into Mainers’ Privacy Drives New Push for Constitutional Amendment,” PORTLAND PRESS HERALD (Jan. 18, 2022), https://www.pressherald.com/2022/01/18/maine-lawmakers-consider-a-constitutional-right-to-privacy/.
