Right to Digital Privacy and Freedom from Surveillance

[Opus]

A Constitutional Amendment for the Protection of Personal Data, Consent, and Autonomy in the Digital Age

1. TLDR

• Establishes a constitutional right to digital privacy and personal data ownership.

• Bans mass or warrantless surveillance by government or private entities.

• Ensures explicit, informed consent before data collection or sale.

• Creates a State Digital Privacy Commission with citizen oversight and enforcement power.

• Allows narrow, time-limited emergency exceptions for urgent public safety needs.

• Costs covered by reallocating existing technology and data-compliance budgets.

⠀

2. Purpose

To guarantee every person’s right to control their own digital data and freedom from unjust surveillance.
This measure ensures that technological advancement serves human liberty, not erodes it, by grounding privacy, consent, and transparency into the state constitution.

3. Background

Over the past decade, technologies like automated license plate readers (ALPRs), facial recognition systems, and data brokerage networks have quietly built an infrastructure of constant observation.
In 2024 alone, these systems captured billions of location data points, often shared between corporations and law enforcement without consent or warrant.

Court precedents like Carpenter v. United States (2018) recognize that prolonged digital tracking constitutes a search—but federal law remains silent on most new forms of surveillance.
Meanwhile, data brokers profit by selling individuals’ behavioral and location profiles, often to public agencies, bypassing constitutional safeguards.

This amendment corrects that imbalance, affirming that your data belongs to you and that surveillance without consent or due process is unconstitutional.

4. Proposed Solutions

Solution 1: Constitutional Right to Digital Privacy

Amend the state constitution to include a new section:

Article I, Section X — The Right to Digital Privacy

• Every person has the right to privacy in their personal data, digital communications, and physical movements.

• No government agency shall collect, store, purchase, or share such information without a warrant issued upon probable cause or as provided by due process of law.

• No private entity shall collect, sell, or transfer personal data without the individual’s explicit, informed, and revocable consent.

• All personal data shall remain the property of the individual to whom it pertains.

The Legislature shall enact implementing statutes consistent with this section, providing enforcement mechanisms, civil remedies, and penalties for violations.

Solution 2: Ban on Mass or Warrantless Surveillance

• Prohibits continuous or automated tracking of individuals or vehicles in public spaces without a warrant.

• Covers license plate readers, drones, facial recognition, predictive policing systems, and similar technologies.

• Requires all approved uses to be publicly logged, with annual deletion of unrelated data.

Solution 3: Emergency and Public Safety Exceptions

Allows temporary, narrowly defined exceptions for:

• Amber or Silver Alerts and declared emergency evacuations.

• Immediate threats to life or public safety, requiring written authorization by the Attorney General or a judge within 48 hours.

• Expiration: Data collected under emergency exceptions must be deleted within 14 days unless attached to an active investigation.

Solution 4: State Digital Privacy Commission

Creates an independent commission with authority to:

• Audit state and local data practices.

• Enforce violations through fines or injunctions.

• Refer criminal misuse cases to the Attorney General.

• Publish annual transparency reports and public dashboards.
  Composition: 5 governor appointees, 4 legislative selections, 4 citizen members elected statewide via secure digital ballot.
  Funding: Drawn from existing state IT compliance budgets—no new taxes required.

Solution 5: Citizen Right of Action

• Grants residents the ability to file civil suits for willful or negligent privacy violations.

• Allows class actions against repeat violators.

• Provides for statutory damages and injunctive relief.

5. Evidence

1. Zeigler, A.J. (2023). ALPR Expansion Programs and Data Privacy. Defense Technical Information Center.
https://apps.dtic.mil/sti/trecms/pdf/AD1225654.pdf
Documents how automated license-plate reader (ALPR) systems have been deployed in thousands of U.S. jurisdictions, creating continuous location tracking without public consent or oversight.

2. Slobogin, C. & Brayne, S. (2023). Surveillance Technologies and Constitutional Law. Annual Review of Criminology.
https://www.annualreviews.org/doi/10.1146/annurev-criminol-030421-035102
Shows that ALPRs, drones, and predictive policing programs exceed existing Fourth-Amendment guardrails, calling for explicit digital-privacy rights.

3. Tsesis, A. (2014). The Right to Erasure: Privacy, Data Brokers, and Indefinite Data Retention. Wake Forest Law Review 49.
https://lawecommons.luc.edu/cgi/viewcontent.cgi?article=1502&context=facpubs
Explains how data brokers’ collection and resale of personal information undermine autonomy and dignity, urging a legal “right to erasure.”

4. Volkwein, C.E. (2022). Digitizing the Fourth Amendment: Privacy in the Age of Big Data Policing. Maine Law Review.
https://digitalcommons.mainelaw.maine.edu/cgi/viewcontent.cgi?article=1004&context=privacy-certificate-student-publications
Argues that bulk data collection by law enforcement and corporations requires constitutional reform to protect citizens’ digital movements.

5. Koops, B.J., Newell, B.C., & Skorvanek, I. (2018). Location Tracking by Police: Regulation of Tireless Surveillance. UC Irvine Law Review 8(1).
https://escholarship.org/content/qt62r710t0/qt62r710t0.pdf
Analyzes how constant location tracking via GPS and ALPR erodes the “reasonable expectation of privacy,” recommending digital-era warrant rules.

6. Friedman, B. (2025). The Constitutionality of Indiscriminate Data Surveillance. University of Pennsylvania Law Review (forthcoming).
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=5164756
Demonstrates how law enforcement circumvents constitutional search requirements by buying commercial data, calling for codified digital privacy rights.

7. Hecht, L. (2021). The Fourth Amendment in the Digital Age. Brennan Center for Justice.
https://www.brennancenter.org/sites/default/files/2021-03/Fourth-Amendment-Digital-Age-Carpenter.pdf
Reviews post-Carpenter case law, showing inconsistent protections for cell-site and location data and urging state-level action.

8. Lynch, J. (2021). Modern Day General Warrants: Mass Suspicionless Searches. Hoover Institution Aegis Paper Series.
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3908755
Compares modern mass surveillance to colonial-era general warrants and argues such searches violate constitutional principles.

9. Dattani, Y. (2021). Big Brother is Scanning: ALPR in Police Forces. Vanderbilt Journal of Entertainment & Technology Law 23(3).
https://scholarship.law.vanderbilt.edu/cgi/viewcontent.cgi?article=1581&context=jetlaw
Examines the growth of ALPR use and legal ambiguity around consent for mass traffic surveillance.

10. Ringrose, K. & Ramjee, D. (2020). Watch Where You Walk: Surveillance and Protester Privacy. California Law Review Online 11.
https://www.californialawreview.org/s/RingroseRamjee_Watch-Where-You-Walk_11CalifLRevOnline349.pdf
Shows that public-space surveillance chills free expression and assembly, threatening First-Amendment rights.

Supporting Legal Precedents & State Models

• Carpenter v. United States, 585 U.S. ___ (2018) – Government must obtain a warrant for cell-site location data.

• California Consumer Privacy Act (2018) – Grants residents rights to access, delete, and opt out of data sales.

• Montana Digital Privacy Amendment (2023) – First state constitutional protection for digital communications and data.

6. Definitions

1. Personal Data: Any information linked to an identifiable person, household, or device.

2. Digital Surveillance: Persistent or automated collection of data about individuals’ movements or behaviors.

3. Informed Consent: A clear, opt-in agreement written in plain language, revocable at any time.

4. Data Broker: Any person or entity that sells or transfers personal data for monetary gain.

5. Emergency Exception: Short-term collection of data strictly for public-safety crises, as defined in this Act.

⠀

7. Clarifications

Q: Will this prevent police from solving crimes?
A: No. It requires a warrant or emergency authorization—standard due process, not prohibition.

Q: Will this ban useful technology?
A: No. It allows voluntary, consent-based systems (e.g., navigation apps, smart-home tools).

Q: Can the public still use security cameras?
A: Yes. This applies to mass or institutional tracking, not personal property use.

8. Implementation

1. Adoption: Submitted as a constitutional amendment on the 2026 general election ballot.

2. Legislation: Within 12 months, legislature passes enforcement statutes aligned with this section.

3. Commission Setup: Appointments and elections within 6 months post-passage.

4. Effective Date: 18 months after voter approval.

5. Funding Source: Reallocation of state IT and privacy-compliance budgets (~$2.5M initial).

9. Why This Proposal Is Critical

Mass surveillance erodes not just privacy—but power.
When every movement can be recorded, citizens cannot speak, organize, or dissent freely.
This measure restores balance: it defines privacy as property, consent as a right, and surveillance as an exception, not the default.
Freedom in the digital age depends on protecting what makes us human—our ability to choose what we share, and with whom.

10. Call for Feedback

• Should biometric and genetic data be added as explicitly protected categories?

• Would you support allowing local opt-ins for stronger-than-state privacy protections?

• Should the Digital Privacy Commission publish real-time audit data for transparency?

• Are there specific industries (e.g., healthcare, education) that deserve tailored exceptions?