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Thursday, April 29, 2010

Privacy Rights vs. Actual Privacy

People should understand the difference between legal privacy, the degree of privacy which they are entitled to under the law, and actual privacy.   Legal privacy means that certain things such as personal e-mails sent on an employer's computer cannot be used as evidence in litigation (as covered by Crime, Politics and Policy earlier this month, see here for my analysis of New Jersey Supreme Court's Stengart case).   It does not mean that those things, such as those e-mails, are actually private.   People should understand that  "legal privacy" is not privacy at all, in the traditional sense.
The best protection against an invasion of privacy is not some fancy technology or some super-strong firewall.   It is, and always has been, your discretion and judgment.   We are afforded a liberal freedom of expression under our Constitution.   That freedom comes with a consequence.   In our common zeal to "express ourselves," we often forget that our control is limited to what we say and do.   We cannot control who observes us, or judges us.   Our rights to express ourselves, to be free, stop when they infringe upon another's rights.   We do not have the right to restrict what others say or think or do.  To the extent we want to control others' opinions of us, we are limited to controlling what we say and do.   In short, our Constitution and our concepts of individual liberties put a premium on individual responsibility.   This means that people ought to act with a sense of judgment and decorum. 
Eric Dixon is a New York lawyer who advises certain political candidates and organizations on sensitive reputational issues which may involve certain Constitutional rights.   He can be reached at 917-696-2442.

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