Sterling and the Shrinking Scope of the Purely “Private” Sphere

“These days, the only way you can have a private conversation is to talk to yourself.”

-- “Susan_Gale” (Board of Wisdom)

Last month, BSB covered the saga of Mozilla CEO Brandon Eich, who resigned after amid a torrent of criticism for his $1000 donation in support of California’s Proposition 8, a ballot measure that sought to ban same-sex marriage. At the time, there was considerable discussion about whether public pressure should be directed at an individual like Eich purely on account of his political beliefs.

More recently, a similar firestorm erupted in the National Basketball Association, as Donald Sterling, the octogenarian owner of the Los Angeles Clippers, was recorded making deeply racist comments. The recording was captured by one of Sterling’s associates, V. Stiviano, who later gave it to a third party for “safe keeping” only to have the contents leaked to TMZ.

Recent reports indicate that the recording was made with consent from both Sterling and Stiviano (California is a “all-party” (or “two party”) consent state, whereas New York is a “one-party” state requiring only one individual to have consented to a recording).

While some have hailed Stiviano as a “hero”, others have questioned whether the real story—aside from the vile commentary unleashed by Sterling—is the nature of private communication in modern life.

NBA great Kareem Abdul-Jabbar even went so far as to say, “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?”

ESPN columnist Jason Whitlock added:

If TMZ plans to make “pillow talk” public and the standard is set that “pillow talk” is actionable, it won't be long before a parade of athletes joins Sterling on Ignorance Island.

A right to privacy is at the very foundation of American freedoms. It's a core value. It's a mistake to undermine a core value because we don't like the way a billionaire exercises it. What happens when a disgruntled lover gives TMZ a tape of a millionaire athlete expressing a homophobic or anti-Semitic or anti-white perspective?

Lastly, Globe columnist Jeff Jacoby issued a cautionary warning, “[I]t isn’t only other people’s dirty laundry that the whole world can get a good look at. It is yours and mine, too. Once our privacy is gone, don’t count on getting it back.”

So what are we to make of this? At the outset, we need to define whether the decline in privacy is a problem in the first place. Presumably, we believe that a shrinking private sphere will lead to self-censorship and the decline in discourse that may at the time seem abhorrent but later becomes not only accepted, but embraced (countless ideas in history follow this trajectory, from Copernican heliocentrism to marriage equality).

At the same time, each of us as “public citizens” must be prepared to shoulder the consequences of our views. But which views? Perhaps those that we affirmatively choose to share with others. For instance, Brandon Eich contributed to a public campaign and was held to account in the marketplace. Donald Sterling did not make such an affirmative choice, though as most others have noted, given Sterling’s history of behavior, he garners little sympathy.

Beyond whether a communication was intended to be public or private, are there important lines to be drawn between politicians and public figures—who we expect to uphold a certain type of consistency across audiences—and private “everyday” Americans? The law already differentiates between these classes of persons in libel law, where public figures must prove “actual malice” to recover. See Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974).

Of course, this only begs the question of who constitutes a public figure. It’s easy to say that a billionaire NBA owner is a public figure—but what of the small business owner on the corner or the superintendent of a small regional school district?

None of these questions are easy to answer, but the Sterling story should generate conversation about the nature of privacy in the modern age—an issue that we’ve done little to address, other than using technology to provide a quick fix (here’s looking at you, Snapchat).

Furthermore, it acts as a reminder that each of us is aware that people say things they don’t mean (we’ve all done it) and that attaching permanent pariah status on another individual for thoughts shared with intimates behind closed doors is often unfair and short-sighted. A society built on open dialogue and second (and third) chances cannot function if there is no safe space to discuss controversial subjects in a constructive manner (again, Sterling’s do not remotely fit this description, but other controversial comments do).

Now I better log off and put pen to physical paper. After all, privacy isn’t dead yet.

SCOTUSWatch: The iPhone Meets the Fourth Amendment

“The Agema Thermovision 210 might disclose, for example, at what hour each night the lady of the house takes her daily sauna and bath—a detail that many would consider ‘intimate.’”

-- Justice Antonin Scalia, Kyllo v. United States, 533 U.S. 27 (2001)

This morning, the Supreme Court will hear argument in United States v. Wurie and Riley v. California, two cases concerning the right of police officers to search cell phones incident to an arrest without a warrant.

These are just the latest in a long line of cases in which the Court has had to try to graft the text of the Fourth Amendment’s prohibition against unreasonable searches and seizures onto modern technology.

Since 2001, the Court has ruled that placing a GPS device on an individual’s car constitutes a search (United States v. Jones, 132 S. Ct. 945 (2012)), the warrantless use of a thermal device to scan the inside of a home for evidence of heat lamps that could be used to grow marijuana violates the Fourth Amendment (Kyllo), and, my personal favorite, that a California law limiting the sale of violent video games to minors violated the First Amendment (Brown v. Entm’t Merchs. Ass’n, 131 S. Ct. 2729 (2011)).

Brown is noteworthy not just for the Court’s strong affirmation of the First Amendment, but also for revealing the limits of the Justices’ understanding of modern technology. During oral argument Justice Elena Kagan stated, “A reasonable jury could find that Mortal Kombat -- which is, you know, an iconic game, which I'm sure half of the clerks who work for us spent considerable amounts of time in their adolescence playing,” at which point Justice Scalia interjected, to the laughter of the courtroom, “I don't know what she's talking about.”

Suffice to say, every Supreme Court justice has a cell phone (whether they have smart phones is another story—the Justices are famous for their paper-based inter-chambers communication), and therefore the issues at stake in the Court today should be at least somewhat familiar.

What are those issues precisely? From my perspective, there are two major questions posed by these cases: (1) What types of content on a phone carry a reasonable expectation of privacy; and (2) How (if at all) does the advent of “cloud” based storage change the calculus for police who seek to preserve evidence incident to an arrest?

First, as NYCLU Associate Legal Director Chris Dunn wrote in a column in the New York Law Journal in February, our phones include a vast amount of information, from emails, photographs, and social media postings to browsing histories, financial data, and GPS-based location tracking.

Some of these “possessions”—like financial records and health information—would seem to fall under the most stringent privacy protection, while others, particularly social media postings (which almost by definition are meant for public display/dissemination), seem to lack the type of reasonable expectation of privacy usually linked with the Fourth Amendment.

Indeed, given that law enforcement agencies already patrol Facebook/Twitter/etc for leads—particularly regarding youth gangs—it would seem odd to not permit cops to examine public social media postings after an arrest, even without a warrant.

On the other hand, why not get a warrant in these situations? For one, a legitimate fear that has long been cited for the need to quickly perform a search incident to an arrest is the concern that evidence could be tampered with, spoiled, or otherwise rendered useless during the booking process. Today, digital “evidence” is uniquely capable of being destroyed from anywhere at anytime by anyone, since a friend could theoretically log in to someone's account and delete potentially incriminating material. That concern creates at least some urgency to a review.

While the First Circuit insisted in Wurie that officers could remove the phone battery, place the phone in a available bag that blocks incoming signals, or copy the phone’s contents without examining them before obtaining a warrant, the fact remains that the evidence accessible via the phone often isn’t on the physical phone. Even the New York Times editorial board fell into this trap, insisting that “any evidence on the phone can be preserved by using special devices to prevent remote deletion of the data.” That’s not true now and is far from a guarantee in the future.

Finding a way to preserve potential evidence stored in the cloud within the framework of the warrant system is a challenge, but not an impossible one. Warrant procedures would need to be streamlined—such that if probable cause exists that evidence of a crime is accessible via the phone, a warrant could be issued in something close to real time.

Establishing such a system is important because the Times is right on the merits—cell phones today are not the 5-pound blocks of Wall Street fame, but are instead repositories of our most intimate associations, private thoughts, and day-to-day movements. For originalists, this means viewing phones as diaries, bank ledgers, and general store receipts rolled into one—precisely the type of “papers and effects” that the Fourth Amendment was designed to protect.