Donald Sterling and the end of privacy


    Over the past few years, my fellow liberals have loudly decried the erosion of individual privacy in America.

    Big data companies and government agencies are peering into every aspect of our personal lives, the argument goes, so nothing is really private any more.

    Apparently, these concerns go out the window when the victimized individual is a racist white guy.

    I speak, of course, of Los Angeles Clippers owner Donald Sterling, whom the National Basketball Association banned from the league on Tuesday. A few days earlier, TMZ had posted a tape recording of Sterling asking his ex-mistress not to bring black people to watch his team, or to pose with them in social-networking photos.

    • WHYY thanks our sponsors — become a WHYY sponsor

    And I didn’t hear a peep of protest from my friends on the Left. Few paused to note that taping someone without their consent is illegal in California. Instead, they congratulated themselves on a job well done.

    “I hope that every bigot in this country sees what happened to Mr. Sterling and recognizes that if he can fall, so can you,” exulted Sacramento Mayor and former NBA star Kevin Johnson.

    Fair enough. But I also hope that every individual in this country can see what happens when we abandon privacy norms in the pursuit of the so-called greater good. And I hope they will recognize that they can fall, too, without these protections.

    Let’s try a little experiment. Raise your hand if you’ve never told a racist, sexist, or homophobic joke. Or if you’ve never yelled at a loved one in a hateful way. Or if you’ve never talked trash behind a friend’s back.

    I’m not seeing any hands.

    Now imagine that all of these comments — which you mistakenly believed were private — were recorded and posted on the Internet, for all to see and hear. Get the picture?

    Louis Brandeis did. In 1890, the future Supreme Court justice worried that new photography technologies were intruding on what Brandeis pointedly called “the right to privacy.” Before that era, bulky cameras limited photography to a small group of professionals. But the introduction of the “snap camera” by Kodak in 1884 allowed anyone to take a picture of anybody else.

    “Instantaneous photographs and newspaper enterprises have invaded the sacred precincts of private and domestic life,” wrote Brandeis in an article co-authored with his law partner, “and numerous mechanical devices threaten to make good the prediction that ‘what is whispered in the closet shall be proclaimed from the house-tops.’”

    Fast-forward to today, when you don’t need a printing press to divulge someone’s darkest secrets. All you need is your smartphone and the Internet, which allows you to spread news — and gossip — much faster and farther than Hearst could have imagined.

    We still don’t know if Mr. Sterling’s ex-girlfriend posted his vile comments on the Net herself. But here’s what we do know: Unless Mr. Sterling consented to it, recording him was a crime. And anyone who cares about individual privacy should be concerned about that.

    It won’t do to reply that Sterling is a public figure in a league dominated by black athletes. That’s true, but it’s also irrelevant. Would it then be OK to wiretap a white teacher who works in a black community, or an Asian policeman who walks the beat in a Hispanic one? If privacy is a right, then it applies to all of us. And if it doesn’t, it’s not a right.

    Nor does it matter that Sterling was already known as someone who harbored ill views of minorities, or that he had paid a large fine for discriminating against them in his property rentals. Indeed, those facts make the recent privacy breach even less defensible. If we already knew Donald Sterling was a racist, why did we have to surreptitiously record him — in apparent violation of the law — to prove it?

    And whatever you do, don’t throw up your hands and say privacy is impossible in the digital age. If anything, the advance of new technologies should make us ever more vigilant about protecting our privacy from them.

    “The intensity and complexity of life, attendant upon advancing civilization, have rendered necessary some retreat from the world  …  so that solitude and privacy have become more essential to the individual,” Louis Brandeis wrote, back in 1890. “But modern enterprise and invention have, through invasion upon his privacy, subjected him to mental pain and distress, far greater than could be inflicted by mere bodily injury.”

    Donald Sterling could tell you all about that. But please don’t be too gleeful about his downfall. The next time, it could be you.

    Want a digest of WHYY’s programs, events & stories? Sign up for our weekly newsletter.

    Together we can reach 100% of WHYY’s fiscal year goal