California voters passed Proposition 11 (the Privacy Initiative) in 1972, amending the state constitution to include a fundamental right to privacy. The ballot arguments for Proposition 11 expressed the voters’ intent to set a high bar for invaders to justify privacy invasions: requiring a compelling public need. For the first twenty years of the new constitutional privacy right’s existence, courts required invaders of individual privacy to meet the compelling public need standard to justify such invasions.
Yet the courts reversed course in 1994, abandoned the compelling public need standard, and have since applied a standard that perverts the electorate’s intent: now, the individual must establish a compelling privacy interest against invasions. This approach to California’s constitutional privacy right has sabotaged the Privacy Initiative. This Article presents six substantive arguments for abandoning the current approach and returning this area of the law to its original intent. This Article supports its substantive analysis with an empirical case study showing that the current approach maimed California’s constitutional privacy right.
It’s time to reset this area of the law. California courts should abandon the current analytical approach to the state’s constitutional privacy right and restore the original interpretation of the Privacy Initiative: the compelling public need test that the voters intended.
David A. Carrillo, Stephen M. Duvernay, Rodolfo E. Rivera Aquino & Brandon V. Stracener,
California Constitutional Law: Privacy,
San Diego L. Rev.
Available at: https://digital.sandiego.edu/sdlr/vol59/iss1/4