Wednesday, April 25 , 2018, 3:00 pm | Fair 61º

 
 
 
 

Susan Estrich: In an Age of Smart Phones and Twitter, Is Nothing Private?

Two guys are at a conference, looking bored. On stage, there’s been talk about “dongles,” which, if you aren’t aware, are devices you plug in to laptops to get connectivity. Bigger ones are supposedly more powerful. Can you guess the joke? (Hint: about whether size matters.)

Actually, I thought it was kinda funny. The women sitting in front of them didn’t. These guys weren’t on the stage. No one was making her listen to them. She could’ve turned and told them to shut up. She could’ve changed seats. She could’ve had her own conversation about what jerks some guys are.

Instead, she snapped a picture of them and tweeted about their dirty jokes.

The tweet goes viral, and one of the guys — married, three kids — gets fired for talking dirty to another guy at a conference. In some circles, the woman is lauded as a hero, making tech politically correct and comfortable for future generations of women. In others, there is shock and awe that a private joke with another guy while sitting in a huge room could cost you your job.

I can’t begin to imagine how many raunchy, tasteless, incorrect comments I’ve made to companions sitting next to me at boring meetings — about the speakers, the subjects, how creepy some guy or girl in the room is, etc. — without once worrying that I would be the subject of a national controversy.

There has been much talk lately, as well there should, about what standards should govern the use of drones as the government’s eyes and ears domestically. But the threats and challenges of dealing with privacy extend well beyond the government, even if the Fourth Amendment itself is so limited.

Back in the 1960s, a guy named Charles Katz used a phone booth in Los Angeles to place bets in Boston and Miami. Unbeknownst to him, the FBI had placed (without a warrant) a listening device on the outside of the phone booth (yes, there used to be phones in booths that took dimes and then quarters), and they used the recording to convict him.

Katz challenged the government’s right to use the evidence, on the grounds that it had been illegally searched and seized in violation of his constitutional right to privacy. He lost in the district court. He lost in the appeals court, which ruled that since the FBI had not intruded physically into the inside of the phone booth, there was no search.

He won in the U.S. Supreme Court, which held that an invasion of privacy did not (as it must have in the time of the Founding Fathers) require a physical intrusion. Concepts of privacy have to be adjusted to take account of changing technology (more than the court in 1967 could have ever imagined). The test, the court ruled, was whether the individual had a “reasonable expectation of privacy.” The whole idea of a phone booth was that it was a private space in a public place where you could make a call. We really don’t have places like that anymore.

So where can you reasonably expect to be in private space in this utterly public bubble? Do you know what’s private and what’s not?

The two guys cracking jokes might have assumed that the woman in front of them was using her phone for something other than photographing them. But why assume that? Why should a politician assume that he can tell people one thing in one room that he would never say in a debate or anyplace where a lot of people would hear it — and not get caught on tape?

Every mike is hot; every room has a smartphone shooting. Assume it. Clean up your Facebook account. Your GPS is on. Somebody’s flying overhead. Your footsteps could be retraced. In most cases, honestly, who cares? Made a stop for ice cream. When I used to call a friend whose phone, we believed, was being wiretapped, we’d have long talks about my mother. It doesn’t matter. Until it does. And then it can make all the difference in the world.

What is private is not something you figure out by looking at the outside world. You get to know it by inventing and defining it as it applies to your world. As for me, I think if you’re going to eavesdrop, you generally ought to keep it to yourself. And when telling dirty jokes in a public space, even if speaking to one individual, keep your voice down. And don’t fire people for this.

Susan Estrich is a best-selling author, the Robert Kingsley Professor of Law and Political Science at the USC Law Center and was campaign manager for 1988 Democratic presidential nominee Michael Dukakis. Click here to contact her or click here to read previous columns. The opinions expressed are her own.

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