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Feb 19 2013

Expectations of privacy

My recent post on the pastor who scrawled on her meal receipt an ungracious note to the server in an Applebee’s restaurant resulted in an interesting discussion in the comments on whether the server was justified in putting a photo of the receipt on the web with the name of the customer visible but other information (the name of the restaurant, the date, and the credit card number) omitted.

This raises an interesting issue of when we have a right to expect that the things we say and do are to be kept private. For the moment let us leave aside whether the Applebee’s management was justified in firing the server and focus on whether the server violated a reasonable expectation of privacy on the part of the customer. We should also ignore for the purposes of this discussion the fact that we have no secrets from the government, which routinely collects and stores all our communications. What I want to focus on is the question of reasonable expectations of privacy in everyday life.

Apart from private communications via telephone where there are laws that govern when they can be recorded, I think we can all agree that public figures have no expectation of privacy for whatever they may say or do in public venues. There also seems to be a consensus that public figures who speak at private occasions have no expectations of privacy either, unless they explicitly request right up front that their comments be kept confidential or off the record and are confident that those conditions will be followed or enforced. A public figure who addresses a large gathering of people whom he does not know or are not bound by professional ethics to not reveal the remarks, would be a fool to think that his or her plea for confidentiality will be honored.

When Mitt Romney infamously spoke disparagingly of the 47% at a private fundraiser that was closed to the press, there was no outrage that his remarks had been secretly recorded and released. Instead the consensus seemed to be that he was stupid not to have realized that this could happen. The same with New York City Mayor Michael Bloomberg’s casual remark to a fellow guest at a private party, which was overheard by a journalist who reported it.

But what about private individuals? Here the issue seems to hinge on whether the remarks were made in the private sphere or the public sphere. If I, a private figure, make a comment at an event that is public or semi-public where there are people I do not know, then I don’t think I can expect that it be kept private. But if I tell a friend something privately, even if I don’t explicitly tell him or her that it should be kept confidential, or if someone visits my home and happens to glance at some of my documents or other items, I think I can be justifiably aggrieved if he or she reveals it to the world without my permission. It all seems to hinge on whether one is in the private sphere or the public sphere. At the extremes the distinction seems pretty clear cut but there is a grey area in between.

So now the question boils down to whether the pastor thought she was acting in the private or public sphere and whether she had a reasonable expectation of privacy. I am inclined to the view that in this case she did not. When one writes a note to a stranger and hands it over to them, then one cannot complain if the contents of that note become public. As I said, that is a different question from whether the restaurant had just cause to fire the server for either violating company policy (and there are mixed views on that) or creating unwelcome publicity for them.

Another case that came to light recently took place in the classroom where a high school psychology teacher and head football coach went on a rant about Michelle Obama and gays. A student recorded the outburst and sent the link to the audio to the district’s superintendent and it has now become public, along with the teacher’s name and school. (It surprises me that people still don’t appreciate the ubiquity of recording devices and are not more circumspect about what they say and to whom.)

The teacher now says that he “misspoke” and that “I have no hatred toward anyone or any group. People that know my heart, they know that.” Ah yes, that well-known barrier between heart and mouth that people often stumble over. You can listen to the audio and judge for yourself.

In this case, did the teacher have a reasonable expectation of privacy that has been violated? I don’t think so. Although I see the classroom as belonging to the private sphere, I adopted the habit long before such recordings became possible that I would not say anything in the classroom, or indeed any venue, that I would not be willing to say publicly, except in obviously confidential situations. Though I personally would protect the confidentiality of anything that a student says in the classroom, we do not adopt a formal policy on this and if a student happened to reveal something that a fellow student or I say in class, I think there would be no grounds for complaint.

It may be that we have an exaggerated sense of the amount of privacy that we are entitled to because most of the time nobody cares what we say and don’t bother to repeat it to others. The growing realization of the ubiquity of recording devices may change that.

10 comments

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  1. 1
    dantalion

    The pastor expected that how she treated another person would be treated as private. She wanted to commit the act without being seen as someone who would do that sort of thing. In this case there is no reasonable expectation of privacy. What you do to the public is public domain.

  2. 2
    unbound

    “When one writes a note to a stranger and hands it over to them, then one cannot complain if the contents of that note become public.”

    This is the key point for me. Privacy is an agreement between individuals or groups, or the expectation that something that is not explicitly shared (e.g. note on a desk) is not made available. No such agreement was made between the pastor and the server, and it certainly wasn’t a private note to herself.

    If I were to tell my neighbor off in private, I have no reasonable expectation of privacy unless we agreed to such a stance. I would fully expect to hear from my other neighbors what a jerk I was, etc. I fail to see the difference between that result, and the result that we saw due to the pastor being a jerk.

  3. 3
    kenbo

    In this case, I would say it is more an exaggerated sense of privilege, not privacy. The teacher took for granted that everyone around him was “OK” with what he was saying, regardless whether he was talking directly to them or not. And yes, he does have hatreds towards other individuals and groups…his recorded words prove that. So now he has proven he is both a bigot and a liar…does this man still have a job teaching kids?

  4. 4
    left0ver1under

    So now the question boils down to whether the pastor thought she was acting in the private or public sphere and whether she had a reasonable expectation of privacy.

    As much as I dislike the thought, I think society has to abandon the idea of “off the record” and traditional expectations of privacy. The only way to ensure potentially embarrassing words don’t get out are not to say them or to be 100% certain of your audience. There are too many bigots and criminals who need to be exposed that we might actually need the change.

    The Sicilian mafia have a saying, “Three can keep a secret…if two are dead.” Similarly, one can keep a secret…if he can keep his mouth shut.

  5. 5
    Jared A

    That saying is quite old. It goes back at least to Benjamin Franklin, if not earlier.

  6. 6
    Marcus Ranum

    We may also wish to consider the relationship between privacy and privilege. Historically, the only people who get privacy are the wealthy and powerful. To a certain degree, that’s the case today, as well – and it’s becoming increasingly costly to protect privacy, which serves to increase that divide. One might make a pretty fair argument that privacy is a bad thing for society in general, since it is an important tool for those who take advantage of loopholes (carefully and privately) to enrich themselves. A good example of that would be the hooplah surrounding Romney’s tax filings. If it was appropriate for someone to record Romney’s famous “47%” comments, why wouldn’t it be appropriate for someone to publish Romney’s tax filings by hacking them out of an IRS database or out of computers at his accountant’s? Perhaps the question we should be considering is not the difference between public sector/private sector as the basis for privacy but rather the comparative wealth and privilege of the individual versus the rest of society.

  7. 7
    garnetstar

    For the police, any evidence that someone has walked away from, left behind, or given to someone else (or put out on the curb, if it’s your garbage) is considered “abandoned” and in the public sphere, therefore legal to collect and publish. I would think that a note handed to a stranger would be as well.

    I think that even stricter standards apply in the classroom. Everything you do or say or wear or put on the wall is considered “teaching”, and therefore is part of your job performance. I should think it’s legal to publicize that for purposes of criticism or comment, as is done for politicians and for any other job, actually.

  8. 8
    Jared A

    A few years ago a philosophy blog I read had some relevant things to say about how public and private spheres collide, especially on the internet:

    http://doctorideas.blogspot.com/2010/03/anonymity-pseudonymity-and-internets.html

    Of relevance is the term ‘pseudonymity’, which applies well in that middle milleu such as restaurants that occurs between private and public spheres.

  9. 9
    Jockaira

    From the abovementioned link:

    “But the pastor crossed that gratuity out in her bill and instead put a zero for the tip, scrawling on it for the server “I give God 10% why do you get 18″. She also inserted her title of ‘Pastor’ over her name.”

    The “Pastor” was, in effect, delivering a sermon in a public place of general accommodation, therefore has no expectation of privacy. Her inclusion of her job title leaves no doubt that her communication was to be received as an official declaration of policy of her church and of her religion, i.e., a tenet. If she intended the communication to be private then a simple addendum on the note would have been sufficient, such as: “This is just for you.”

  10. 10
    MNb

    “There also seems to be a consensus that public figures who speak at private occasions have no expectations of privacy either.”
    I disagree. It depends on the circumstances. If they something that relates to their public function, no, they don’t have expectations. But as far as their private life goes they do. Possibly this is a minority standpoint, but in Europe still quite a few people do adhere to this. For example I don’t have the faintest idea which members of the current government in The Netherlands are married or not, who are religious or not, how many childred they have, what their sexual preferences are etcetera. I don’t care either, like many Dutch.
    So no consensus.
    Romney’s 47% blunder is obviously something different – it was a statement directly related to his political views. The same for the high school teacher – a teacher is a public figure. That’s how the pupils look at him/her. They are not going to shut up at home and they shouldn’t.
    But the pastor in the restaurant wasn’t there as a public figure; moreover a dinner is a private occasion. So the employee should not have published the name of the pastor. What’s especially important is that the employee could made her point without publishing the name.

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