It’s Time to Revitalize California’s Constitutional Right to Privacy 

Nicole A. Ozer was the director of the Technology and Civil Liberties Program at the ACLU of Northern California, which filed an amicus brief in Renderos v. Clearview.

The Trump administration is smashing through constitutional boundaries and weaponizing artificial intelligence technology, including by consolidating sensitive personal information that could be used to attack political dissidents and vulnerable groups.

But California has a ready sword to fight these threats: a constitutional right to privacy. The right was enacted to protect and advance rights and safety — and safeguard the very fabric of democracy. In the early 1970s, when the United States was last at a similar historical and political crossroads — at the cusp of massive technological change with the dawn of the modern computer age — the people of California voted to enshrine a right to privacy in the state constitution. It is the most comprehensive constitutional right to privacy in the world, protecting against intrusions by both government and private actors and safeguarding both autonomy and informational privacy.

At the core of the provision is an allocation of power. In 1972, the state legislature and the people of California recognized that the combination of government, corporate, and technological power was going to stack the decks against people’s rights and safety. As the amendment’s legislative staff analysis articulated, there had to be “new safeguards to meet the new dangers.” The amendment’s legislative history — both as it initially moved through the California legislature and then in the ballot argument that appeared in the 1972 voter guide — makes clear that the provision was meant to give people the power to guide how privacy questions were resolved in the modern digital age.

The amendment charted a new path to guarantee a distinct, positive, and expansive right to both pursue and obtain privacy, one that did not rely on the U.S. Supreme Court’s search-and-seizure jurisprudence, which concerns itself with “reasonable expectations of privacy” and lacks clarity about who is protected and from what.

As I discuss in more detail in my law review article, both the origin and purpose of the California constitutional right to privacy is deeply connected to social movements — including anti-war activism and the struggles for racial, gender, and economic justice and LGBTQ+ rights — of the 1960s and 1970s. Many activists had personally experienced rampant governmental surveillance and other efforts to undermine leadership and sabotage protest, dissent, and social change. There was a visceral understanding of how already-powerful actors could take advantage of new technology to attack social movement efforts and a deep recognition that privacy was fundamental to other rights and personal safety.

The 1972 ballot argument in support of the right explains its objectives, purpose, and scope with urgency and precision. The “proliferation of government snooping and data collecting is threatening to destroy our traditional freedoms,” it says, highlighting the need for effective restraints on the activities of government and business. It makes clear that “the right of privacy is the right to be left alone” and that it is a “fundamental and compelling interest” that “protects our homes, our families, our thoughts, our emotions, our expressions, our personalities, our freedom of communion, and our freedom to associate with the people we choose.” The right “should be abridged only when there is compelling public need,” the proponents wrote.

The enactment of the right put California’s jurisprudence at the vanguard of protecting both informational and autonomy privacy, as courts began interpreting the amendment’s scope. In 1975’s White v. Davis, the first California Supreme Court case to interpret the privacy amendment, the court held that a spying program of the Los Angeles police department, which infiltrated courses and organizations at the University of California, Los Angeles to create dossiers on students and professors, constituted a prima facie violation of the right. The decision clarified the reach of the right. It reinforced an expansive standing right for Californians to be heard in court on privacy claims and made clear that the privacy invader had the burden of justifying the incursion with a compelling interest.

But in the decades that followed, the state high court undercut the full force of the right. In 1994, a newly majority-conservative court decided Hill v. National Collegiate Athletic Association, a case challenging drug testing of student athletes. The court followed drafter and voter intent in determining the scope of the privacy right, holding that it did create a right of action against both governmental and private entities. But the decision also kneecapped California’s privacy guarantees in multiple ways and made it far more difficult for people to prove a violation and effectively utilize the right as intended. Departing from the text, legislative history, and precedent, the court bolted on new required elements for a privacy claim, demanding claimants show a reasonable expectation of privacy under the circumstances and that the invasion was serious.

The court also made it harder to hold private parties accountable for any type of privacy invasion and easier for defendants to justify informational privacy invasions. The court grounded these distinctions in assumptions that were already questionable in 1994 but which are starkly untrue today: namely, that private parties cannot pose as great a danger as the government, that an individual generally has greater choice and alternatives in dealing with private actors than when dealing with the government, and that there is a meaningful distinction between autonomy and informational privacy. These assumptions are inapplicable in the modern AI age, where we live digital lives and “smart” devices largely eviscerate lines between our physical and informational selves, large technology companies are richer and have more coercive power than many nation states, and corporations are in deep collaboration with government.

Justice Stanley Mosk, who was on the bench for the 1975 White decision, issued a blistering dissent in Hill, chastising his fellow justices for abrogating an “express” right where “nothing is left to implication.” Justice Ronald M. George issued a concurring and dissenting opinion, criticizing the majority for abandoning an “established analytical framework” and replacing it “with the entirely new legal structure fashioned by the majority” and ignoring the “constitutionally protected status that the Privacy Initiative clearly intended to afford the right of privacy.”

Fortunately, new cases moving through California’s courts provide opportunities to revitalize the right’s proper reach. For example, Renderos v. Clearview, brought on behalf of racial justice and immigrants’ rights organizations and activists to stop the AI company’s face surveillance practices, includes a constitutional privacy claim. A trial court rejected Clearview’s attempt to strike the complaint based on California’s anti-SLAPP statute, a law protecting against lawsuits intended to chill protected speech. An appellate court affirmed that ruling in May.

Clearview’s surveillance practices are at the core of what the California constitutional privacy was designed to protect against. The amendment’s “moving force” was to address the “accelerating encroachment on personal freedom and security caused by increased surveillance and data collection activity in contemporary society,” an amicus brief from the ACLU of Northern California in support of the Renderos plaintiffs explained. The brief discussed that Clearview’s invasive face surveillance implicates multiple principal mischiefs central to the constitutional right to privacy, as identified by White: government snooping and the secret gathering of personal information; overbroad collection and retention of unnecessary personal information; lack of reasonable checks on the accuracy of existing records; and improper use of information properly obtained for a specific purpose, such as the disclosure of data to some third party.

In Renderos and other pending cases, California courts have the opportunity to affirm the fundamental right to pursue and obtain privacy for all people in California. This state constitutional right is particularly salient at this political moment in the AI age.

Nicole Ozer is a national expert on legal issues at the intersection of rights, technology, and democracy, including artificial intelligence, privacy and surveillance, and digital speech. Her most recent article is Golden State Sword: The History and Future of California’s Constitutional Right to Privacy to Defend and Promote Rights, Justice, and Democracy in the Modern Digital Age.

Suggested Citation: Nicole Ozer, It’s Time to Revitalize California’s Constitutional Right to Privacy, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (Aug. 11, 2025), https://statecourtreport.org/our-work/analysis-opinion/its-time-revitalize-californias-constitutional-right-privacy