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September 24, 2009

Hmm: RedState Post on No Privacy When Dealing With Public Wrong?

RedState seemed to state (or I assumed them to state) was that the snippets of legal opinion cited established the proposition that when someone in a business or organization is dealing with "the public," he can't have a reasonable expectation of privacy in that discussion.

Zero Sheep says that's not the case at all. And that the cases cited stand only for the proposition that if X and Y are having a conversation but they know (or should know) a third party Z can hear them, they can't have an expectation of privacy.

In which case, it's not true that just dealing with "the public" generally ends the expectation of privacy.

And in that case the analysis from a commenter -- that the ACORN employees could not have an expectation of privacy, because they knew one third party (their employer, charged with making sure they didn't misuse private customer information) had a right to eavesdrop -- would be the argument to make.

Response from RedState's Leon Wolf: He says no, that's what it means.

I don't know myself so I can only quote people arguing with each other.

But... now that I think of it, Leon's broad exception seems, well, seriously broad. As in overbroad. It is an exception, as they say, that eats the rule. If his argument is correct, you cannot have a reasonable expectation of privacy with anyone except, it seems, someone you have known personally for some undefined period of time.

If I knock on a stranger's door and start talking to him, by Leon's reasoning, the guy I'm talking to has no reasonable expectation of privacy because I'm a member of the public and I can tape him all day, consent or no.

That doesn't sound right.

For one thing, I don't know how, by this rule, one would separate members of "the public" from people who are not members of "the public."

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posted by Ace at 02:24 PM

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