Protection of Privacy by States Is Ranked

[Dave Farber <dave () farber net>]

October 20, 2002

Protection of Privacy by States Is Ranked
By ADAM CLYMER

ASHINGTON, Oct. 19 ‹ California and Minnesota protect the privacy of their
citizens better than any other states, while the federal government does a
poor job, a study by Privacy Journal says.

Robert Ellis Smith, publisher of the monthly journal, said the two states
have much in common in the commitment to privacy rights, though he ranked
California marginally ahead.

"Both have a permanent office in state government looking after privacy," he
said. "Both state supreme courts have reaffirmed the right to privacy."

"In California, the court has ruled that constitutional protections for
privacy apply to private as well as government actions," he said. The state
government also has a privacy office, and its Legislature is continually
"tweaking" privacy laws to stay on top of new intrusions.

"In Minnesota, the court has ruled that disclosure of private facts is a
tort," Mr. Smith said. Moreover, Minnesota law applies to local governments
as well as state government, and the state has the oldest established
privacy office in the country, always fully staffed and financed. He said
Minnesota also received credit for an effective lawsuit in which Attorney
General Mike Hatch won large damages from banks for selling information to
telemarketers. 

Minnesota and California were also among the leaders in a 1999 version of
the survey, which ranks states on whether they have privacy guarantees in
their constitutions, laws protecting financial, medical, library and
government files, and have fair credit reporting laws stronger than federal
legislation. States are given extra credit when their highest courts have
strong records on privacy and receive deductions for antiprivacy actions by
state agencies or legislatures.

The journal ranked states in five tiers. The other states in the top tier
are Connecticut, Florida, Hawaii, Illinois, Massachusetts, New York,
Washington and Wisconsin.

The second tier, states considered "above average," includes Alaska,
Arizona, Colorado, Georgia, Maine, Oklahoma, Rhode Island, Utah and Vermont.

The third tier, states considered "below average," has Indiana, Louisiana,
Maryland, Michigan, Montana, New Jersey, Nevada, Ohio, Oregon and Virginia.

The fourth tier has nine states and the District of Columbia: Alabama, North
Dakota, Nebraska, New Hampshire, New Mexico, Pennsylvania, South Carolina,
Tennessee and West Virginia.

The lowest tier includes Arkansas, Delaware, Idaho, Iowa, Kansas, Kentucky,
Mississippi, Missouri, North Carolina, South Dakota, Texas and Wyoming.

Texas, ranked in 1999 as "not on the radar screen," improved its standing by
enacting laws restricting the use of genetic information by insurance
companies and employers, and the use of automatic dialers by telemarketers.
It also joined several other states by requiring telemarketers not to call
individuals who have entered their names on a state "do not call" list.

Mr. Smith said the federal government would have been ranked in the fourth
tier of privacy protectors if it were a state.

At the moment, he said, the federal government has no regulation for medical
records privacy, and the regime scheduled to go into effect next year is
"weak." As for a guarantee of financial privacy, he said "the federal system
really doesn't have one."

Nor does the federal government provide any protection for the privacy of
library records. "Most states do have laws that give great leverage to
reject most requests" for information on users, though all have exceptions
for formal law enforcement requests.

He said the U.S.A. Patriot Act had diminished privacy.

"The antiterrorist legislation in significant ways made it easier for law
enforcement to conduct electronic surveillance," he said. "I don't think
they were gross invasions of privacy, but the changes have to be regarded as
a net loss of privacy."

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