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Home | Blog | The eroding of any sense of privacy in America

The eroding of any sense of privacy in America

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The Donald Sterling affair is the latest step in the eroding of any sense of personal privacy in American society.  The owner of the ‘Los Angeles Clippers’ NBA team was taped in an argument with an alleged mistress, expressing his distaste for her posting online photos of herself with black men, or bringing them to basketball games for his team — this tape having been made without his knowledge or consent.  After the tape was leaked to the news media, and aired publicly, Sterling has now become the most hated man in America, and the NBA Commissioner has fined him $2.5m and banned him, inter alia, from participating in any business decisions involving his NBA team.  This will now precipitate the forced sale of his NBA team. This episode brings up interesting issues for libertarians, in respect of the proper scope of the ‘right to privacy’ (i.e., the proper ownership claims involved in such situations and the proper scope of privacy protections afforded by such ownership claims). 

But setting aside the question of rights, one very concerning thing here is the broader erosion of any expectation of privacy in American society — the fact that people are now perfectly comfortable with a man being publicly destroyed over a recording of comments made in private in an intimate relationship with another person.This kind of derogation of people’s sense of concern about privacy is particularly concerning in view of the parallel shredding of privacy by the NSA mass-surveillance programs.  In his article, Welcome to the finger-wagging Olympics, basketball star Kareem Abdul Jabar criticises Sterling, but then asks the important question:

“Shouldn’t we be equally angered by the fact that his private, intimate conversation was taped and then leaked to the media?  Didn’t we just call to task the NSA for intruding into American citizen’s privacy in such an un-American way?  ...  The making and release of this tape is so sleazy that just listening to it makes me feel like an accomplice to the crime.  We didn’t steal the cake but we’re all gorging ourselves on it.”

Whatever Sterling’s just-deserts, if the American public, or the wider world public, continue to make a habit of gorging themselves on the private conversations of others, made in intimate moments, and taped without their knowledge or consent, then they are priming themselves for the already-occurring descent into soft-totalitarian rule.  The apparatus for this is essentially already constructed, and social attitudes are also shifting to allow this to occur. The public may have “called the NSA to task” over its surveillance programs, but the reality is that this has barely made a dent.  

So long as people hanker for recordings of private conversations, they will be like lambs to the slaughter for an agency like the NSA.  If people want to live in a free society, with respect for the privacy of others, then they need to give serious consideration to how they treat information coming from recordings of private conversations.  This is a classic "fruit of the poisonous tree" situation, albeit in a non-legal context.*


* The "fruit of the poisonous tree" is a legal metaphor used in describing evidence of a crime which has been obtained illegally by the police.  In such situations the evidence is ruled out of consideration, despite its relevance, on the grounds that it is a greater evil to allow the consideration of ill-gotten evidence than to make a wrong decision by virtue of not using that evidence.  I use the term here not in the strict sense of criminal law, but in the wider sense, referring to remarks from a tape made without the consent of the speaker.

Ben O'Neill is a lecturer in statistics at the University of New South Wales (ADFA) in Canberra, Australia. He has formerly practiced as a lawyer and as a political adviser in Canberra.

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