Has the Internet Made Debates over Privacy Moot?

By refusing to hear an appeal of a lower court decision that kept emails between Governor Corzine and the former head of a state employees union private, the New Jersey Supreme Court has effectively put an end to a long debate over whether the messages should be publicly disclosed.

But even if we have heard the last of this particular saga, privacy issues are likely to remain a hot topic — not only for public figures, but for the general citizenry as well.

A few years ago, I explored the issue of privacy in a paper titled Private Lives of Public Officials: The Gray Line Between the Right to Privacy and the Public’s Right to Know. In the paper, I concluded that the debate over privacy is moot because, given the accessibility of information available on the internet, it has become virtually impossible to keep information private today. I also argued that the breakdown of privacy impacts all of us, not just those who live and work are in the public spotlight.

On the first point, Sarah Palin’s announcement that her 17-year old unmarried daughter Bristol was pregnant provides a good example. At the time, the McCain-Palin campaign said it was not disclosing the baby’s father’s full name, his age or how he knew Bristol, citing privacy. It took less than a day for major media outlets to learn that the father was 18-year old Levi Johnston, a high school classmate of Bristol. They also reported that Johnston’s MySpace page was laced with profanity in which he described himself as a redneck and indicated that he did not want to have children.

One can argue that Johnston was a public figure – at least indirectly –because he dated the daughter of a Governor and therefore opened his life up to closer scrutiny. But sometimes individuals who are just minding their own business can lose their privacy too. Kenneth Potts is one of them.

In the immediate aftermath of Governor Corzine’s April 12, 2007, accident on the Garden State Parkway, State Police indicated that the collision was the fault of the driver of a red pickup truck who caused a car to swerve into the path of Corzine’s vehicle, which then crashed into a guard rail. Within a few days, Potts was identified as the driver of the pickup, and newspapers reported a variety of information about him – where he worked, where he had gone to school, how long he had lived in New Jersey, his family members’ names and more. The information was obtained from his MySpace page, interviews with neighbors and public records.

As with Johnston, one could argue that Potts became a public figure subject to public scrutiny because of his role in the Governor’s accident. Potts’ case is different, however, because unlike Johnston, he did not make a pro-active decision to become involved with a public figure and public events. In addition, a subsequent State Police investigation concluded that he was not the cause of the accident. Instead, it was triggered by unauthorized use of emergency lights to clear traffic. So Potts never should have been the focus of so many detailed news accounts.

So how do we maintain our privacy in the 21st Century?

A good place to begin is with a well-known rule that applies to talking with journalists off the record: If you don’t want something you say to appear in a news report, don’t say it – on or off the record. Likewise, if you don’t want embarrassing photos of you in various stages of inebriation or undress to surface when you are being screened for a job or running for public office, don’t post them on Facebook or MySpace.

Better yet, don’t engage in activities you may regret later because you never know who may be nearby with a camera phone. Just ask Michael Phelps, whose public image and endorsement earnings suffered heavy damage after a widely circulated picture — taken with a camera phone — showed him appearing to smoke marijuana from a bong. “If you think you have any privacy, think again,” sociologist Marsha Rosenbaum told the Associated Press in a story about the Phelps photo. “Somebody’s camera on their phone catches you doing something, and the next thing you know, it’s the potshot that went around the world.”

As far back as 1890, in a landmark Harvard Law Review article, Louis D. Brandeis and Samuel D. Warren warned of the dangers that technology posed for privacy: “Instantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life; and numerous mechanical devices threaten to make good the prediction that ‘what is whispered in the closet shall be proclaimed from the house-tops’.”

Ultimately, it comes down to how we as people decide to use the new technology that can make our lives much easier, but also has the potential to destroy our privacy. The warning that Brandeis and Warren sounded in 1890 remains relevant today, but perhaps even more relevant are the words of a mentalist from Montclair.

“The last thing we have left in our society is our private thoughts,” the Amazing Kreskin says in this month’s New Jersey Monthly magazine.  “I read minds, but I also have morals.  A machine has no morals.”

# # #

Richard A. Lee will be speaking on this topic on Saturday, March 28, at Kean University as part of the 13th Annual New Jersey Communication Association Conference.

Listen to a podcast on this topic.

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