Monday, May 12, 2014

A Quick Comment on What the Right to Privacy Isn't

There has been some recent handwringing about the recording of Donald Sterling's comments, allegedly by his ex-girlfriend, that ultimately resulted in his lifetime suspension from the NBA;  and that somehow the recording violated Sterling's 'right to privacy.'

Well, no, not really.

From what I understand, it's against California law to release a surreptitious recording of someone if he or she didn't consent to the release even if the recorder was part of the conversation. Now, that is a matter of law and I'm not going to argue Sterling doesn't have a legal case against her. But the law's propriety is questionable and I'll explain why.

If V. (Donald's xgf) made the recording herself, then it was a recording of a conversation she was a part of. It wasn't the government tapping the office or the phone without a warrant, it was a conversation she witnessed and participated in. I don't think anyone would say that if she went public saying that's what Sterling said to her that it would be a violation of his privacy. Just because you assume someone will keep a conversation between the two of you or keep a secret for you doesn't mean they will. Assuming there is no contract involved or they are not serving in a privileged capacity--doctor, lawyer, etc.--they are bound by no law to not say what you told them.

So, if V. has a recording verifying what he said, what privacy interest was violated that would not be violated by her simply saying that's what he said? None. It's just verification. (That she is alleged to have used this information as extortion is certainly illegal as it should be, but the possession of damning or embarrassing information shouldn't itself be against the law.)

If V. had left a mic in Sterling's office and recorded a conversation that she wasn't a part of, then yes, that would be an invasion of privacy because she would be gaining access to information she was not privy to herself and, if she were the government she would need a warrant to violate Sterling's "reasonable expectation of privacy"--which is where the Fourth Amendment jurisprudence usually hinges.

But anyway, the point is, it may be unethical and icky--and, absurdly, against California state law--but relaying information conveyed directly to you is a violation of no one's actual right to privacy (provided you weren't trying to extort someone with it). The simple fact is, every time you tell someone something, you run the risk of them telling someone else. That she put it on blast doesn't change the fact he said what he did and, improper CA law notwithstanding, she had the right to let people know he said it. If she just went to the news media with her information without the recording, people would want proof beyond he said/she said. She provided it.

The California law is V.'s problem, on several fronts I imagine, but let's try to remember what a right to privacy is, and is not.

bellum medicamenti delenda est

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