Repealing Colorado’s Tattletale Law: An Opportunity to Restore Coloradans’ Privacy

“Union and Constitution.” These words appear on the Great Seal of Colorado and celebrate the ideals enshrined in the Federal Constitution, including the rights of freedom of expression and privacy.

Sadly, in 2010, the Colorado legislature enacted a tax reporting law that assaults those rights. The aptly nicknamed Colorado “tattletale” law requires online and catalog businesses to report to the state Department of Revenue (DOR) Colorado shoppers’ purchases, including the name of the catalog or online store where the shopper made purchases; the shopper’s name and address; and the amount the shopper spent on products or services.

Thankfully the legislature soon will have the opportunity to restore Colorado residents’ privacy rights later this Spring with SB 17-238, which if passed would repeal the tattletale reporting provision.

Privacy Exposed

Under the current law, the report to the DOR reveals a significant amount of personal information about Colorado shoppers.

Merely by linking a Coloradan customer to a specific retailer, the state can learn about that Coloradan’s health issues, political leanings, sexual orientation, personal tastes, and financial circumstances. Although the inclination for some may be to dismiss the law as requiring insignificant, typical taxing documentation, who among us would want it exposed if we purchased products from sites like transveteran.org, marijuanapackaging.com, stop-depression-meds.com, socialistparty-usa.net, or divorcewriter.com?

Senior Colorado legislators also have denounced the tattletale law for exposing residents’ private shopping activities to the state government.

“The online purchases from Colorado citizens should be protected information – which our current online purchase law does not protect.” – Colorado Senate Majority Leader, Chris Holbert

Among these notable figures include Former Republican House Majority Leader, Amy Stephens, who said the law is an “unnecessary and unwanted intrusion” into constituents’ privacy.

Similarly, Colorado Senate Majority Leader, Chris Holbert said, “The online purchases from Colorado citizens should be protected information – which our current online purchase law does not protect.”

Coloradan residents too have rebuked the privacy stripping practices of the tattletale law.

A statewide poll conducted earlier this year revealed that an overwhelming majority of Coloradans oppose this type of reporting and consider it an invasion of privacy.

  • 67% said the Colorado law violates their expectation of privacy from government intrusion into their online and catalog purchases.
  • 84 % said that when making online purchases, their privacy is “very important” to them.

Privacy Exploited

What adds to privacy concerns is that the law lacks any provision on handling or protecting residents’ intimate information.

Governments being able to discern these intimate details about people from their transactions concerned Supreme Court Justice Stewart who said “I doubt there are any who would be happy to have broadcast to the world a list of the local or long distance numbers they have called. This is not because such a list might in some sense be incriminating, but because it easily could reveal the identities of the persons and the places called, and thus reveal the most intimate details of a person’s life.”

Courts are readily aware of how unrestricted government collection laws can have a chilling effect on First Amendment activities, and so they have struck down laws permitting the warrantless seizure of hotel guest registries, membership lists, and customers’ purchases.

So not only are residents susceptible to disclosure by data breaches, exemplified by the foreign hacking of the OPM and the IRS, but also domestic agencies intentionally leaking tax information for politically motivated reasons. Basically, the law has no provision for protecting the confidentiality of the information collected by the DOR, meaning it could be shared with other government agencies and used for purposes other than tax collection.

The occurrence of government officials abusing sensitive taxpayer information is not a conspiracy theory or the plotline from the latest John Grisham novel. Disconcertingly, it has happened in our recent history.

In 2013, the IRS came under fire for allegedly disclosing conservative non-profits’ tax information to liberal organizations. Additionally, an inspector general investigation revealed that the IRS imposed a more rigorous application process on conservative groups seeking non-profit status.

 

But protecting privacy is not a novel concept. There is a long history of the courts restraining the government from collecting details about our private lives. Courts are readily aware of how unrestricted government collection laws can have a chilling effect on First Amendment activities, and so they have struck down laws permitting the warrantless seizure of hotel guest registries, membership lists, and customers’ purchases.

It is now time for Colorado legislators to follow through on their commitment to “Union and Constitution” by repealing the Colorado tattletale law.

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