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This definitely has ramifications far beyond Washington state.
(much more at the link)
Privacy Looms Over Gay Rights Vote
www.nytimes.com/2009/11/01...tition.html
By WILLIAM YARDLEY
Published: October 31, 2009
SEATTLE - At a time when voters in many states are using petitions to
qualify ballot measures on issues from gay rights to property rights, a
legal dispute over the identity of 138,000 petition signers here is raising
new questions about privacy, free speech and elections in the Internet age.
wei.secstate.wa.gov/osos/en/...tion.aspx
On Tuesday, voters in Washington State will decide whether to extend to
registered domestic partners the same rights married couples have, short of
marriage. But the campaign over the referendum, placed on the ballot by
opponents of same-sex marriage, has been overshadowed by one issue: whether
the individual names of the petitioners should be made public, and
ultimately, circulated on the Web.
The United States Supreme Court weighed in last week, deciding to let stand
a lower court ruling that ordered Washington's secretary of state not to
disclose the names of the signers. The Supreme Court did not rule on the
merits of the issue, and it is unclear whether it will.
The case, legal experts say, could chart new territory well beyond
Washington State. The United States Court of Appeals for the Ninth Circuit,
which had ordered the release of the signatures, said the case presented
"novel questions of whether referendum petition signatures are protected
speech under the First Amendment."
wei.secstate.wa.gov/osos/en/...20DOE.pdf
Some advocates for releasing the names who support the expansion of the
state's domestic partnership rights say they want to post the names of
petition signers as a check against fraud but also to encourage potentially
"uncomfortable" conversations with the people who signed the petitions.
(much more at the link)
Privacy Looms Over Gay Rights Vote
www.nytimes.com/2009/11/01...tition.html
By WILLIAM YARDLEY
Published: October 31, 2009
SEATTLE - At a time when voters in many states are using petitions to
qualify ballot measures on issues from gay rights to property rights, a
legal dispute over the identity of 138,000 petition signers here is raising
new questions about privacy, free speech and elections in the Internet age.
wei.secstate.wa.gov/osos/en/...tion.aspx
On Tuesday, voters in Washington State will decide whether to extend to
registered domestic partners the same rights married couples have, short of
marriage. But the campaign over the referendum, placed on the ballot by
opponents of same-sex marriage, has been overshadowed by one issue: whether
the individual names of the petitioners should be made public, and
ultimately, circulated on the Web.
The United States Supreme Court weighed in last week, deciding to let stand
a lower court ruling that ordered Washington's secretary of state not to
disclose the names of the signers. The Supreme Court did not rule on the
merits of the issue, and it is unclear whether it will.
The case, legal experts say, could chart new territory well beyond
Washington State. The United States Court of Appeals for the Ninth Circuit,
which had ordered the release of the signatures, said the case presented
"novel questions of whether referendum petition signatures are protected
speech under the First Amendment."
wei.secstate.wa.gov/osos/en/...20DOE.pdf
Some advocates for releasing the names who support the expansion of the
state's domestic partnership rights say they want to post the names of
petition signers as a check against fraud but also to encourage potentially
"uncomfortable" conversations with the people who signed the petitions.
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Re: Privacy v. First Amendment in WA state ballot process
Mon, November 2, 2009 - 3:07 PMThese signatures can be readily checked for fraud without publishing them on the internet.
Signing a ballot iniative is not a lot different from casting a vote. Our votes are private. A person's vote is NEVER made public. This is sacred.
In light of that, unless those who want to publish the names can show a compelling need to publish, they should not be allowed to. With scientific sampling techniques, the signatures can be quickly and easily tested for fraud by checking up on a sample of the people who alleged signed and verifying that they signed. There's no need to check every single signature and no need to make every signature public. -
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Re: Privacy v. First Amendment in WA state ballot process
Mon, November 2, 2009 - 8:46 PMI think this is a really interesting case - and a hard one. I don't think that signing a ballot initiative is the same as voting. It's an indicator about how you're likely to vote, but you can change your mind again and again until you actually vote.
That this type of information was never posted widely before is similar to the 'privacy through obscurity' discussions. In the past we've had more privacy because most of our personal information was filed away in filing cabinets and there was no easy way to get it all. Now it's all in a database, and can be sliced and diced in almost any way possible.
Some states view this information as public record information, and for those states that do, then this information should be available. I'm not sure what Washington state does although it looks like at one time these records were considered to be public records. Scroll down to almost the bottom of the page. wei.secstate.wa.gov/osos/en/...ions.aspx
Eugene Volokh was quoted in the article - he's a First Amendment professor at UCLA. He says: As Eugene Volokh, a professor specializing in First Amendment issues at the
University of California, Los Angeles, law school, put it, "Now, public
access really is public access."
Mr. Volokh said that the "talk of retaliation" had added complexity to the
Washington case and raised the question of whether, if the names are
disclosed, "you're really not going to get an accurate measure of public
sentiment" because people will become reluctant to sign petitions. He said
confrontation had been a theme in other gay rights campaigns, including in
California last year with Proposition 8, whose passage outlawed same-sex
marriage there.
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For me, that's where the issue is. If the records are made public, how much of a chilling effect do you create, and should the records be kept private for that reason alone. -
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Re: Privacy v. First Amendment in WA state ballot process
Tue, November 3, 2009 - 5:27 AMOf course it will have a chilling effect, and that's the reason they want to put it on the web.
I do think signing ballot iniatives is similar to voting. Not identical, but close enough that it should not be more widely publicized than is necessary to check for fraud.
Is it a public record? So? Not all public records are public. WHAT! WHAT!
Yes. There are all kinds of records kept by the government that are not published on the web and which you cannot obtain without showing some justification or cause. This includes everything from motor vehicle registration documents to autopsy reports.
Should all autopsy reports be put on the web for anyone to see, so that amateur sleuths can review them for evidence of foul play in every suspicious death case? They are public records, after all. But hell no. Why not? Because of the privacy interests of the survivors. Because it is goulish. Just because a bunch of weirdos would enjoy reading them doesn't mean they get to. You're not getting to see these unless you are law enforcement, family or you have a subpoena. And that's the way it should be. This is just one example. There are so many others.
So, the "it's a public record" argument should fail. It doesn't mean anything to call it a public record.
Unless you can show that there's no other effective way to check for fraud, there's no justification for making the signatures on ballot iniatives public on the web. It won't be used for fraud checking. It will be used to embarass, harass, and to chill political participation. -
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Re: Privacy v. First Amendment in WA state ballot process
Tue, November 3, 2009 - 10:34 AMYes, but motor vehicle records are now protected by statute - the Driver's Privacy Protection Act. Here's a good page on the DPPA: epic.org/privacy/drivers/ That statute came into being due to abuse of those records.
I'm not terribly up on autopsy records. I know that they're closed in Florida, but that they're open in Delaware. And usually it's journalists that want them for news articles. Generally though, I think if these records are going to be public, they should be public- and that means put them up on the web. If we *don't* want them to be public, then we should say that too, and make them available via exceptions to rules.
The big fight with public records is with court records (and what to redact from them - soc. security numbers, etc.). Birth and death records are a close second - those are getting harder to get due to identity theft concerns.
But there's the tension here - is limiting public records the right way to go? The more information that is taken away from the public, the more the public is in the dark about a particular issue. In this case of Washington state, knowing who the signers are of the petition allows the public to see just who is supporting it and what their motivations might be.
>It will be used to embarass, harass, and to chill political participation.
Personally I don't care about the embarrassment factor - own your words! The hard part for me is the chilling of political participation - that's what I don't want to see. -
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Re: Privacy v. First Amendment in WA state ballot process
Tue, November 3, 2009 - 11:12 AMYeah. My hubby signed a petition the other day that may have raised eyebrows or caused trouble at work, if the petition were seen by the wrong people. His response was along the lines of the above...that it wasn't an admission of personal culpability, just a statement of the fact that he supports the people in question's rights. But still, you can see that if *I* were him, and thought that this signing were going to be published, I would have hesitated, and that's exactly what we don't want people to do.
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Re: Privacy v. First Amendment in WA state ballot process
Tue, November 3, 2009 - 4:41 PM"Personally I don't care about the embarrassment factor - own your words! The hard part for me is the chilling of political participation - that's what I don't want to see."
---very odd argument from a privacy right lawyer. That almost sounds like when the cops say "if you're innocent, then you'll have nothing to hide and you don't mind us searching your home do you?" Yes, I do mind, not because I have anything to hide, but because it is private.
Are you saying that tax returns should be put up on the web for inspection, too? Are those government records? You file them with the IRS, and they're the government?
If a vet goes to a GI hospital, shouldn't his medical records be on the web for all to see?
Where's the principle at stake here? You're saying any record possessed by the government should be open to all the world to see, unless a statute is enacted to the contrary? -
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Re: Privacy v. First Amendment in WA state ballot process
Tue, November 3, 2009 - 5:25 PM>You're saying any record possessed by the government should be open to all the world to see, unless a statute is enacted to the contrary?
Absolutely not! I'm only saying that *public records* should be public unless there is a strong reason why they shouldn't be. Like I mentioned as an example, privacy advocates (me, included) have been advocating for redacting social security numbers from court records (with a lot of success - and court records are public records, btw). There's no reason to have a social security number posted anywhere where identity thieves can get at them. We *do* want access to a court record though for obvious reasons.
An individual's tax returns are not public records, nor are medical records. In fact, most records aren't public records. On the other hand, as an example, tax assessors records are public records - and there is a good reason for that. If you want to buy a piece of property, you want to look at the record and make sure that the person selling you the property actually owns the property they are purporting to have the ability to sell.
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Re: Privacy v. First Amendment in WA state ballot process
Tue, November 3, 2009 - 7:47 PMBut as Jane said, what is the principle at work here? You're just playing games of semantics. Public records are public records, you say. But what makes something a public record?
A person's vote is not a public record, on at least that you would agree. But why not? What's the principle behind that. You declare that signing a ballot makes it a public record. Why? What is the principle?
Can you give us more than semantics? What are the principles here? -
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Re: Privacy v. First Amendment in WA state ballot process
Wed, November 4, 2009 - 11:54 AM>But what makes something a public record?
State or federal law determines this. Typical items include marriage, birth and death records, driver's license info, property ownership, among others. We want (and need) in a free society to have access to public records to hold public officials and our government accountable to the people. We want to know how our courts are run, we want to know that a list of voters in a particular location contain voters who actually live there. Of course, these records necessarily contain our personally identifiable information. The problem then becomes how do we keep access as open as possible without compromising a person's privacy and/or security? And that is a very hard question.
So far what's happened is that some information gets redacted before it is released (court records, as an example). States are also flirting with use restrictions, particularly for commercial entities (such as data aggregators).
The net has allowed many a 'got'cha' moment' with regard to public records, no doubt about that. But the answer isn't to try to stuff that genie (or that information) back into the bottle (or the filing cabinet); I think the right answer is for our society to re-evaluate how we can use the personal information contained in public records. And your guess is as good as mine as to how that will turn out.
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This is the maximum depth. Additional responses will not be threaded.
Re: Privacy v. First Amendment in WA state ballot process
Wed, November 4, 2009 - 2:43 PMSo it is just semantics. If we call it a public record, it is. If we don't, it isn't. No guiding principle, just semantics. -
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Re: Privacy v. First Amendment in WA state ballot process
Wed, November 4, 2009 - 2:50 PMYou don't view holding public officials and our government accountable to the people as a guiding principle? -
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Re: Privacy v. First Amendment in WA state ballot process
Wed, November 4, 2009 - 8:27 PMhow is embarassing people who signed a ballot iniative by posting their names on the internet to do with holding the government officials accountable? -
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Re: Privacy v. First Amendment in WA state ballot process
Wed, November 4, 2009 - 9:15 PM>how is embarassing people who signed a ballot iniative by posting their names on the internet to do with holding the government officials accountable?
Obviously embarrassing people wasn't the purpose of ID'ing people who signed ballot initiative forms. The purpose was as I stated above - holding the government officials accountable. We want fair elections. In this case we want to know that the people who signed the forms actually are eligible to vote in this election. It was the secondary use of that information that caused the embarrassment.
These records were always public, they just weren't *that* public. If you don't like it, then the best way to deal with it is to petition the courts (or draft a law) to make those records less public. Courts or legislature - take your pick. If you know of a third route, please, do tell.
It's certainly an evolving area of law... -
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Re: Privacy v. First Amendment in WA state ballot process
Wed, November 4, 2009 - 10:25 PMInitiative sig. gatherers, whether paid or volunteering, have access to specific information on each individual signing. On up to certification, the premise seems to be transparency. Deb, the misconception over signing merely to get an issue on the ballot for deliberation is only trumped in WA. by those who saw "marriage" within R-71 where non existed... -
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Re: Privacy v. First Amendment in WA state ballot process
Wed, November 4, 2009 - 11:26 PM>Initiative sig. gatherers, whether paid or volunteering, have access to specific information on each individual signing. On up to certification, the premise seems to be transparency.
I buy that.
>Deb, the misconception over signing merely to get an issue on the ballot for deliberation is only trumped in WA. by those who saw "marriage" within R-71 where non existed...
What's the status of it now?
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Re: Privacy v. First Amendment in WA state ballot process
Thu, November 5, 2009 - 8:12 AM"Obviously embarrassing people wasn't the purpose of ID'ing people who signed ballot initiative forms. The purpose was as I stated above - holding the government officials accountable. We want fair elections. In this case we want to know that the people who signed the forms actually are eligible to vote in this election. It was the secondary use of that information that caused the embarrassment."
> Why do you say it is obvious that embarassment and harassment were not the purpose? Simply posting all the names on the internet, under the guise of accountability, is a silly argument. The assumption is that if you post all the names, those signatures that were fraudulent or ineligible will be discovered by the magic of the internet. Really? Has anyone tested this theory? That's quite a lot of blind faith in the internet. The only reliable way is to actually go and cross check the signatures in a methodical and organized manner, either by statistical sampling or checking each one. Posting the information on the web is guaranteed to do only one thing - embarass people and therefore chill participation in the political process.
There is a distinction between a governmental record and a public record. Open government does not necessarily mean that every single governmental record is posted on the web for every looky lou in the world to see for any reason or no reason. Some governmental records, because of the sensitive nature of the information contained in them, can and should be restricted to those who have demonstrated a legitimate need or reason to request them. This is not a difficult concept, nor is it a novel or new area of law.
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