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

"And How Does This Relate to Our Discussion of the Uses of Irony?"

Pardon the Ferris Bueller reference, but I received this case in a media update from the Third Circuit Court of Appeals and it made me laugh:

On December 15, 2009, while on duty, Appellants stopped and frisked men they believed were engaged in an illegal drug transaction. One of the men they frisked, Keyshawn Artis, accused Appellants of stealing money from him. Appellants denied the accusation, and told Artis to ―move along.

When Appellants returned to headquarters, a superior officer, Sergeant Salvatore Fede, ordered them into his office. After informing Appellants that a complaint about their behavior had been made to the Internal Affairs Bureau, Sergeant Fede took Appellants to Captain Melvin Singleton’s office. Appellants did not feel free to leave because they had been ―ordered to be in the captain’s office.‖ App. 285. After waiting fifteen to twenty minutes, Appellants and Sergeant Fede were joined by Captain Singleton, then-Sergeant Patrick Kelly, and Lieutenant Frank Palumbo.

Appellants were instructed to stay in Captain Singleton’s office until officers from the Internal Affairs Bureau arrived. While Appellants waited, Captain Singleton offered them water and told them that they could watch television, but instructed them not to use their cell phones. Appellants then were questioned about their interaction with Artis, including whether they had taken money from him. In that regard, Appellants were asked to remove their jackets and Gwynn was asked to remove his outer vest. Appellants also were told to pull out their pockets, pull up their pant legs and pull down their socks, and open their wallets. Finally, Appellants were told that cooperation would be in their ―best interest insofar as it could demonstrate to Internal Affairs that they did not have Artis’s money when they returned from their patrol. During the hour or so they spent in Captain Singleton’s office while awaiting the arrival of Internal Affairs officers, Appellants did as they were told because the orders came from their ―superiors and supervisors, and they feared ―discipline and possible loss of employment‖ if they disobeyed. App. 241.

Upon their arrival at Captain Singleton’s office, two Internal Affairs officers questioned Appellants for about fifteen to twenty minutes and then left briefly to talk to Artis, the complainant. Appellants were told to stay put until the Internal Affairs officers returned after speaking with Artis. As Appellants waited, Gwynn asked for permission to call his wife to arrange for her to pick up their son, and then-Sergeant Kelly granted permission. The Internal Affairs officers returned, stated that they believed Artis, and told Appellants that they were not needed for anything further that day. Appellants left Captain Singleton’s office around 8:15 p.m. and when they opened their lockers that evening, it appeared as though they had been searched.

For those not fluent in legalese, two Philadelphia police officers stopped and frisked two civilians who were not found to have any contraband, one of the civilians said one of the cops took his money, the cops told him to get lost, and the police superiors (to my surprise! Especially in Philly.) put the officers in an office, told them to empty their pockets and turn out their clothes to prove they didn't take the man's money. The ordeal at the station lasted about an hour.

They sued the department and their fellow officers for violating their 4th Amendment rights and false imprisonment because the department superiors kept them in an office and had them, to borrow a term from the anti-immigration folks, "self-frisk"...after they stopped and frisked two guys on the street. (Bonus chutzpah: they also sued for overtime.)

Thankfully, CA3 was unpersuaded by their case. You can read the opinion here.

NSLs and You

The lastest video from Cato's multimedia department deals with National Security Letters and the egregious lengths the FBI has gone through (and probably continues to) to exercise unprecedented administrative subpoena power. The subsequent gag orders to render them unchallengeable is maddening.




That these letters exist is problematic in itself; that the documented, widespread abuse of them went generally unnoticed outside of the Beltway (and the telecommunications industry) is scandalous.

bellum medicamenti delenda est

Absurdity of Metro Bag Screening

I wrote this letter to the editor regarding Washington Post's recent editorial supporting the "necessary nuisance" of random bag checks on the DC metro system. It didn't get published, but here it is.

In your unsigned editorial “Metro's bag checks: Necessary nuisance for a real threat,” (March 7), you argued that because bad things happen, Fourth Amendment violations are a necessary nuisance. Tellingly, nowhere in the article is the efficiency or efficacy of the bag checks addressed.

Leaving aside the millions of commuters in the other cities mentioned, 600,000 people per day use the DC Metrorail. If Metro Transit Police stopped just one percent of them on any given day, it would take 50 man-hours to stop 6000 people at the “quick” 30 seconds per stop.

Of course, a terrorist could just as easily attack a throng of people lining up for the gates even before getting to security, as the Moscow airport bomber did in January.

Random checks are, by definition, indiscriminate. Given that these searches are occasional and dispersed, the number of riders stopped is statistically insignificant compared to overall ridership and thus these searches amount to simple security theater.

If WMATA believes this method will catch a terrorist, it should start diverting five dollars a week to the lottery to fix its budget shortfall: it has roughly the same chance of success and doesn't involve the pesky Fourth Amendment.


Jonathan Blanks
Alexandria, VA

Right To Privacy Not Guaranteed By Constitution, Says Supreme Court Justice Peeking In Bathroom Window

From the Onion:

WESTON, FL—In a public ruling made this week while peering into the home of 28-year-old resident Laura Daltry, Supreme Court Justice Samuel Alito stated that "in no way whatsoever" is the right to privacy explicitly upheld by the U.S. Constitution.

"After careful consideration, it is this justice's finding that there is no specific mention of the right to privacy in any of the 27 amendments," Alito whispered, before furtively looking around and then jimmying Daltry's bathroom window ajar with a penknife. "A rigorous originalist interpretation of the pertinent statutory language has yielded the conclusion that privacy is not now, nor has it ever been, a federally protected liberty."

"Although modern tort law indicates four categories of privacy invasion, these amount to little more than a vague suggestion of the 'right to be left alone,'" Alito added, crawling through the narrow opening and slowly lowering himself onto Daltry's toilet tank. "Plus, if you rent a ground floor apartment, you're kind of asking for it."

Change You Can Believe In...

From the WSJ:

On the campaign trail, Mr. Obama criticized many of President George W. Bush's counterterrorism policies. He condemned Mr. Bush for promoting "excessive secrecy, indefinite detention, warrantless wiretapping and 'enhanced interrogation techniques' like simulated drowning that qualify as torture through any careful measure of the law or appeal to human decency."

Amen. Unfortunately, that was later in the column. The column begins like this:

President-elect Barack Obama is unlikely to radically overhaul controversial Bush administration intelligence policies, advisers say, an approach that is almost certain to create tension within the Democratic Party.

Civil-liberties groups were among those outraged that the White House sanctioned the use of harsh intelligence techniques -- which some consider torture -- by the Central Intelligence Agency, and expanded domestic spy powers. These groups are demanding quick action to reverse these policies.

Mr. Obama is being advised largely by a group of intelligence professionals, including some who have supported Republicans, and centrist former officials in the Clinton administration. They say he is likely to fill key intelligence posts with pragmatists.

"He's going to take a very centrist approach to these issues," said Roger Cressey, a former counterterrorism official in the Clinton and Bush administrations. "Whenever an administration swings too far on the spectrum left or right, we end up getting ourselves in big trouble."

So much for "condemnation" and "appeal[s] to human decency."

Maybe he'll still break a fiver for me?

Brutalizing English for Political Gain

My head nearly exploded this morning when I read this opening paragraph of a WSJ editorial:

The best news about yesterday's White House-Democrat deal on overseas eavesdropping is that the ACLU and the anti-antiterror Internet mob are apoplectic. This can only be good for U.S. national security. Too bad the compromise also comes at the cost of a further erosion of Presidential war powers.

"Anti-antiterror?" "War powers?"

I've ranted against "anti-antiterror" before, although it still infuriates me to no end. If the WSJ is going to be that way, they should just call people like me pro-terrorist or communist or whatever other ridiculous smear they can think of for properly comprehending the 4th Amendment to the Constitution of the United States. If they did that, they could limit their offensiveness to their own ideas without butchering the language to mask the absurdity of their implication.

Secondly, domestic intelligence gathering is not a tool of war. Indeed, it is a criminal justice issue and thus properly relegated to the judicial oversight of the FISA court. Under this twisted logic that conflates a policy talking-point (i.e. "War on Terror") with a conflict between military or paramilitary forces (i.e., war), one could easily argue for discarding Constitutional rights in the "War on Drugs" or even the "War on Poverty"--and they have.

Calling something a "war" as a political tactic does not make it so. Such language is simply a political trick to convince the public that the government can strip individuals rights for the sake of some greater good during a national emergency, that may or may not be as dangerous as advertised.

More on the political chicanery of the ubiquitous war metaphor can be found in my friend Gene Healy's book Cult of the Presidency. Buy it here.

From the WSJ: Inarticulate Drivel

I don't know if it's the pending influence of Rupert Murdoch, or if they are independently creeping toward vacuous punditry, but the Wall Street Journal's Editorial Board put forth a piece today that is dripping with inartful sophistry, attacking Democrats who opposed extending the Protect America Act:

What we have here is a remarkable display of the anti-antiterror minority at work.

Forgive my brief foray into grammatical banality, but using a double-negative to call the Speaker of the House an accomplice to terrorism is an incomprehensibly weak journalistic tactic, in addition to being grossly inappropriate. I have been a vocal critic of Speaker Pelosi for years, but even she gets it right now and again -- and I think she's right this time.

But reasonable people may disagree on the Constitutional and moral extent of domestic and foreign wiretapping by our government. Yet, saying that about Ms. Pelosi -- and by association, most libertarians I know of including Gulf War and Afghanistan vets, journalists, think-tankers, and former Federal judges -- subtracts any meaning from the intelligence debate and, frankly, is an indiscreet attack by a nameless half-wit hack. Ultimately, this just reflects poorly on one of our nation's greatest newspapers without adding anything substantive to the issue -- subverting the purpose of editorials.

But for what it's worth, given even a cursory reading of the 4th Amendment, I can only deduce that the Founding Fathers too would be thus viewed as "anti-antiterror":

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Maybe the WSJ staff just felt it had to suck up to the GOP because of this scathing piece it also ran today about Rep. Jeff Flake's (R-AZ) doomed run for the vacant Appropriations Committee slot.

At least someone over there still gets it.


On a totally unrelated note, as I typed this, the spell check dinged me for "inartful." Determined to use it anyway, I found this blurb on the Volokh Conspiracy justifying my usage.

Take My Job...PLEASE!

In an extraordinarily disgusting op-ed in the NYT today, (entitled 'Help Me Spy on Al-Qaeda') DNI director Mike McConnell extols the virtues of throwing out the 4th Amendment for the purposes of making his job easier:

Before the Protect America Act was enacted, to monitor the communications of foreign intelligence targets outside the United States, in some cases we had to operate under the Foreign Intelligence Surveillance Act, known as FISA, a law that had not kept pace with changes in technology. In a significant number of these cases, FISA required us to obtain a court order. This requirement slowed — and sometimes prevented — our ability to collect timely foreign intelligence.

For the record, the FISA court acts like a secret grand jury of judges...if you want to spy on a ham sandwich, just say the word. But when the government's case is especially specious, they have been known to turn down a ridiculously low number of applications. But I digress...

Any new law should begin by being true to the principles that make the Protect America Act successful. First, the intelligence community needs a law that does not require a court order for surveillance directed at a foreign intelligence target reasonably believed to be outside the United States, regardless of where the communications are found. The intelligence community should spend its time protecting our nation, not providing privacy protections to foreign terrorists and other diffuse international threats. (Emphasis added.)

So, if I read this correctly, the government has to show (up to four months post facto) that it "reasonably believes" that the information it taps is of foreign origin, but can still be considered "regardless" of where it is actually collected.

No warrant. No judge. Our safeguards are reduced to the 'reasonableness' of our government.

Pardon me if I don't feel any safer.