What about Sterling’s privacy rights?

What about Sterling’s privacy rights?

Daily Journal

May 5, 2014

Ara Jabagchourian


The recent media attention on Los Angeles Clippers owner Donald Sterling is clearly warranted. Nearly every newspaper in California has had Sterling’s audio taped views on African-Americans running on the front page in the past week or so. The comments were truly deplorable.


However, despite all the moral outrage, there has been little or no focus on the presumptive criminal violation that may have occurred. If the recording was made without Sterling’s consent, and if it occurred in California, a violation of Penal Code Section 632 has been committed. Section 632 protects against recordings of confidential communications without the consent of both parties. A “confidential communication” under this statute is defined as one where the communication is “carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto.” There are several exceptions, including one that permits recording where a person has no reasonable expectation of privacy, such as being overheard in public.

Without knowing where the recording took place (e.g., in a home, in California, at a restaurant, etc.), whether others were present, or whether there was consent to the recording, an open question of a violation of Section 632 exists. Violations of that section carry hefty fines and potential jail time.

Given the fact that the National Security Agency is reading and storing American’s emails and texts and tracking who is calling who, it would seem that at least one media outlet would have inquired into the manner in which this recording was procured.

Has the public given up on the notion of privacy? Or is the content of the conversation justification for its recording and dissemination? Does the fact that a conversation discloses a person’s racial bias mean that it is less deserving of protections from the law than a conversation concerning a person’s health condition or political position on a particular issue?

The assumption is that the self-admitted racial bias against blacks of an NBA team owner sells a lot more papers and advertising space (for both print and the Internet) than does a discussion of a violation of the law and its impact on an individual’s privacy rights. Does the motive for profits now trump privacy interests and provide the media a green light to disseminate information that was garnered by the fruits of a potential violation of the law?

The concern is that if it is open game on privacy based on either the substance of a presumptively private conversation or the position or status of the person being recorded, America’s media has just poured some high-grade grease on a very steep slippery slope. Imagine conversations with one’s spouse, child or co-worker being recorded and used to impact one’s livelihood. That person may have a private conversation about her views on universal health care, military spending, corporate welfare, the Israeli-Palestinian conflict, whether a movement is terrorism or rebellion, etc., that they never intended on making public. At what point is it permissible to disclose and republish a private conversation for all to hear and to thus convert it to a public comment?

During the Soviet era, the American media shined a light on the culture of reporting that purportedly existed in those republics. Brothers would out brothers, children would report on parents’ private anti-communist views, neighbors would report on recent purchases of neighbors. All of this irked Americans to the core because it concerned matters we all consider private. Maybe the media or the public believes that views of racism, no matter if made in private, are automatically deemed to be public. Or, because the views are harbored by a NBA team owner, the private views on race are by default deemed to be public.

The views taken by Sterling as reflected in that recording are ugly and disgusting. But the fact that someone harbors private racist, sexist, anti-democratic, antiimperialist, anti-Bush, anti-Obama, or other views which are considered wrong or distasteful, should not be the basis for permitting a violation of law that has been promulgated to protect all of our individual privacy interests. The problem may not be the media’s lack of reporting on privacy issues, but rather the hypocrisy of an industry that fights to protect its own freedoms set forth by law while at the same time profiting from selling stories that cut directly against the privacy interests of individuals.