Image Via Let's Talk Marriage
Many of my Facebook friends have recently said “Let’s Talk Marriage.” They’ve posted a link that takes users to a web page which, if the user is signed into their Facebook account, scours the user’s Facebook friends and tells the user who amongst their friends signed Referendum 71. Ref 71 was a 2009 Washington measure which, if passed, would have overturned the so called “Everything But Marriage Bill.” The petition to get Ref 71 on the 2009 ballot garnered the signatures of 121,757 Washington voters. Multiple parties made a public information request under the Washington Public Records Act for the names of the petition signers. SCOTUS declared in Doe v. Reed that the Public Records Act under which the release would be made was constitutional and then remanded to the District Court, who made the determination to release the signatures.
The signatures were released in October, 2011 and have been categorized in an online database found at WhoSigned.Org . Facebook App Developer Justin Voskuh has taken it a step further and created the “Let’s Talk Marriage” app (link above) which searches for matches between a user’s friends and petition signers. This app is being used by opponents of the petitions for Referendum 74. The petition will be circulated this month. Should the petition gain 120,000 signatures Washington voters will determine this fall whether or not to support the recently passed Marriage Equality Law.
Thousands will sign the petition, but what the petition probably wont tell them is that, like with ref 71, their information will likely be released to the public, and then distributed with the help of social media. The threat of the information release is surely enough to deter signers, so could it be that whether the signature requirement is met comes down to the privacy concerns of the signers, and not their politics?
I actually don’t believe petition signers have any privacy right in their signature at all for a couple of reasons: first, inherent in the nature of the referendum process is the concept of a “people’s veto.” Ordinary citizens act in a legislative capacity when they sign referenda petitions in Washington; I analogize the act of signing the petition to a legislator casting a vote, an obviously public act in which the legislator has no expectation of privacy.
Secondly (and far more persuasive, in my opinion), how could petition signers reasonably argue they expect their signatures to be “private information” when they sign an petition sheet already signed by dozens of people? If I were to sign a referendum petition, I’d be able to see many, many people who signed immediately before me; dozens of people I don’t even know may see my signature on the sheet when they sign it after me–practically speaking, signing such a petition is just not a “private” act. It would be a different story if each petition signer affixed their signature to a unique document, but this is not the case; I believe Justice Scalia noted this point in oral arguments in Doe v. Reed.
Washington state has a peculiarly strong history in direct democracy–like many Western states which developed constitutions during the populist political era of the late 19th century, initiatives and referenda are a fact of life that make the people essentially a fourth branch of government. Scalia’s whole thrust of argument in Doe v. Reed is that democracy is a contact sport; it’s messy, sometimes contentious, and requires people to cogently defend their beliefs. I this is especially the case when direct democracy is involved. If people want to exercise governmental power over their fellow citizens, then it is better to do so in the light of day, and frankly they should be as prepared to defend the exercise of their power as legislators are prepared to defend their cast votes.
I disagree, though as we discussed in class today, I am admittedly biased by my experience with friends in Venezuela, where the publication of petition signature names at best irked signers and at worst impacted their very livelihood. I’ve included a couple of news stories for background at the end of this post.
Additionally, I think there are some important qualifications to Eric’s arguments above. First, an individual’s act of signing the petition is substantially distinguishable from a legislator casting a vote. The legislator is clearly a “public figure,” and he does not have a reasonable expectation of privacy in fulfilling the function of his office. An individual signing a petition does not rise to the same level of notoriety simply through the act of signing, so I think there can still a reasonable expectation of privacy.
Second, one individual seeing other names when signing a sheet with dozens of other names is a much different scope of public disclosure than the publication of that sheet. This is the same scope issue present in Google’s streetview publication of pictures, as we discussed in class. If you can have an expectation that photographs taken of you in a public place shouldn’t be published for the whole world to see, can’t you also have an expectation that your name will really only be visible to the other 50 signers on the page instead of published for the whole world’s scrutiny?
You can read more about the initial publication and its use as a blacklist here: http://www.bloomberg.com/apps/news?pid=newsarchive&sid=abASlsAyXgoE
Additionally, you can read about a more recent repercussion in the recent primary elections here: http://www.nytimes.com/2012/02/16/world/americas/venezuelans-clash-over-secrecy-of-voter-names.html