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Monday, December 14, 2009

Protecting Indiscretions: D.C. District Court Upholds Privacy of Prosecutor's Personal E-Mail

Do you have a right to privacy regarding an e-mail you send using your employer's e-mail account?

A District of Columbia federal district court decision has ruled that you do.   See this link here; note that the party requesting the data is a self-described whistleblower former Assistant United States Attorney Richard Convertino, who was fired for alleged prosecutorial misconduct in an anti-terrorism case in Michigan in 2004.

I think this case misses the point.   Why aren't responsible adults be discreet enough to communicate in a truly private way, using their own servers and machines?   Why are adults using others' machines and permitting their private affairs to be revealed? 

Sometimes, maybe the issue just isn't whether someone else is prying.   Maybe the issue is a total lack of awareness and discretion.  

If you want to keep something private, as a practical matter, isn't it the most prudent action to do whatever you can -- within your own control -- to keep it private?   I suspect the people complaining about the prying eyes of others don't realize that by focusing on what others are doing, we lose control of our own destiny.  

It is the difference between you being able to have control -- by exercising judgment and discretion in order to prevent an invasion of your privacy -- and being able to seek only "post-injury" relief in the courts by complaining about the invasion that has already occurred.  It is the difference between preventing the injury, and trying to get damages after you've suffered it.

If we're talking about a broken arm, isn't it better off to prevent the broken arm in the first place?

With privacy issues, we are just not talking about accidents.   Many "invasions of privacy" can be prevented.   It just takes some effort and mature judgment.   Just because we live in a society where many of us -- and especially the young -- do not hesitate to share "too much information" with everyone else does not change the fundamental equation.

As I've written before, we are the best defenders of our own privacy.   Not the Constitution.   Not the courts.   Not the Electronic Frontier Foundation.   It's us.  

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