There is a difference between private and public communications.  The law, in its various aspects, often looks to the reasonable expectation of privacy when it comes to the legality of taping or interception of communications, whether by the government or private citizens.

That distinction is eroding in an age not just of accessible technology, but the ability of people to swarm through social connections on the internet.

And so it was with Donald Sterling, owner of the L.A. Clippers.

Because his comments were indefensible, it’s hard to defend the distinction between private and public conversations in such an instance even though there is an important distinction.

Has none of us said something believing it to be private that we regret; or might have expressed regret for soon after we said it?

Is pillow talk no different than a tweet?

Is nothing private anymore, at least to the extent if offends societal notions of what is proper?

I’m reminded of Gene Hackman in Francis Ford Coppola’s The Conversation, where the privacy hunter became the hunted:

Charles C.W, Cooke made good points in his post on the topic, The Shrinking Private Sphere:

It is difficult to work up much sympathy for the man — a billionaire with a history of rank intolerance and questionable business ethics. And that his remarks came from a conversation with a woman who is not his wife does little to help his cause. Nevertheless, one should be a little reluctant to applaud the recording and dissemination of a private telephone conversation simply because it has skewered someone unpleasant. At yesterday’s press conference, one especially earnest member of the audience asked whether the powers-that-be at the NBA intended to conduct an investigation to find out if anyone else involved with basketball had ugly views — an instinct that, when coupled with the performance-art outrage and glancing-at-the-cameras indignation that are the hallmarks of our age, carried with it a whiff of inquisition….

Imagine for a moment that the press-conference questioner’s idle wish for purity were to be fulfilled, and the innermost thoughts of basketball’s luminaries were revealed for the world to see — their wives, friends, or girlfriends being tasked with recording their transgressions and exhibiting them on the Internet. We would see more people treated to general opprobrium and hounded from office, as any such search would doubtless reveal another Donald Sterling or two — some domestic violence, some drug use, some bribery, and, without question, some homophobia.

But it would reveal much more besides, and therein I think lies the trouble: In all likelihood, we would also learn of financial troubles, of psychological issues, of marital problems, of health concerns, of indecipherable and easily misinterpreted in-jokes, of preferences that lie outside the mainstream, and of a lot more that is quotidian besides. There is, simply put, no way of getting one’s hands on the salacious material without also collecting the sacrosanct. Are we prepared to take that risk?

If rooting out improper thoughts, expressed in private conversations unrelated to unlawful conduct, is the goal, then we should be rejoicing at alleged NSA snooping.  Indeed, we should demand that it be expanded and released to the public.

If thought police is what we need, why should we have to rely on the whims of disgruntled mistresses to protect society?

There’s a legal maxim that “bad facts make bad law.”

The bad facts of the Donald Sterling comments make it bad for privacy.


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