Legal Limits of Privacy; Should I have said That?
Everyone has secrets; at least I've never met someone yet who didn't or if I did, that was a secret they kept to themselves. In many legal situations, whether they are related to a business or a personal dispute, the discovery of an opponent's secrets can determine a successful outcome. There are many legal rules distinguishing what is private and what is devoid of the veil of secrecy, much like the football league's penalizing the Bronco's team for the taping of a practice of the New York Giants last season that they weren't supposed to see.
In law, their are complex rules related to secrets, who can keep them, where they can be kept safe from viewing, and what type of secret must be revealed upon a request of the government or other litigant.
Early in my legal career, I remember asking to see a document that my opponent clearly didn't expect me to see, but which I legally was entitled to ask for, during a deposition. When the opponent reluctantly handed it me across the table after his attorney told him that he must, there was a sticky note he had attached at some time prior, reading, "keep this from the lawyer". Even before I read the document under the note, the fact that he didn't want to reveal it lead me to correctly believe that the case had been won, the secret document was a secret, no more. Needless to say, if you have "top secret" documents, it is probably good advice not to bring them to your deposition.
The who of keeping secrets is relatively easy to grasp. Certain communications made within defined relationships are private. Though the list is long of who can keep communications private, examples generally include husbands and wife communications, clergy and parishioner and, of course, lawyer and client. So for example, if the parishioner confesses to his spiritual advisor that he has already committed a murder, the clergyman is not be required to reveal this to the police.
Interestingly however, the rules get refined when the clergyman is told during a confession that there is a murder about to be committed. In that situation they should alert the police to thwart a heinous crime and can have monetary responsibility for their failure to do so.
Aside from discussing the types of relationships within which a secret can be protected from disclosure, where is it safe to keep one's confidences from probing eyes? Most of us feel that our private diaries are just that, private. However, there is no protection in the law for diary entries. I suppose that most people have had their private diaries invaded at one time by another such as a snooping relative, demonstrating that fact one's diary is not exactly the best place to store secrets. In short, private thoughts don't remain protected if you write them down and put them in a place where they are likely to be found by someone else.
On the other hand, if you were to go to a therapist who instructed you to keep a diary, the diary could be protected on the basis of a medical privilege, relating back to the earlier discussion of who can keep secrets. This is because keeping a diary would be related to a medical/psychological treatment if instructed do so by the therapist. So, perhaps it would be better to mark diary entries with "Dear Dr. Freud", instead of "Dear Diary".
Spoken words can be tricky to protect. A public speech will almost never be protected since you know you are letting your words out into the public, the opposite of private.
But are telephone calls subject to public or courtroom disclosure?When it comes to the recording of telephone calls, a common method by which the content of a conversation is revealed, most telephone calls are protected and nobody may listen to them, other than the caller and the person known to be on the line's other end, whether a cellular phone or a land line is utilized. Even police, if they want to access telephone calls, are required to get a court order before listening to or recording calls. This is commonly referred to as a "wiretap".
But, if either a caller or a call recipient wants to record a phone call they may under Colorado State law, although Federal law prohibits recording unless both sides of the call know that it is being recorded. Contrast that when both people on the line know the call is being recorded, the legal theory is that the parties have "consented" to that being done and no law prohibits that. It is another matter whether someone else, not known to be on the call, can listen to a recording of a call. Remember that President Richard Nixon thought that his Oval Office calls and meetings would remain in private, a fact that history refuted.
Another prime example of how a spoken telephonic communication enters a courtroom is when the caller leaves a telephone message, more frequent every day given the ease of recording messages and preserving them. Generally, if you leave a message on a recording, it is not private. Therefore, I suggest that the worst possible time to leave a message is when you are mad at the person you are calling; the same applies to hitting "send" key for an e-mail. Not only can you easily find yourself facing a charge for harassment by leaving an offensive message but it also provides easy evidence in any case where proof of what you said is to be used against you.
People should also be circumspect about postings on social network pages or other websites. Any job seeker or courtroom witness should make certain that anything posted publicly on a site will be fair game when their job application is being reviewed or, when their hand is raised taking a courtroom oath to speak the truth. Privacy settings on a social network may be less available to the general public, and therefore less susceptible to be discovered in a court case, but be careful to select who of your "friends" are, thereby allowing them access to information.
In a recent case, I used an exhibit against witness, who claimed to be sober after a night of barhopping, a social network photo depicting him hoisting a beer stein at Oktoberfest, debunking his contention that during the period he had been sober due to a medication he was taking.
The understanding of what communications are likely to remain private is not for the purpose of evading the law, but should enable one to understand clearly that when speaking, when writing, and to whom a communication is made, whether or not it will remain in private. The law understands that in our society that highly values freedom of speech, the freedom to express oneself should be capable of a limited reach, if that is what the speaker desires. Were a person seeing psychiatric help to believe that all their communications with their therapist were open to public scrutiny, treatment would be inhibited.
Bruce Brown is a lawyer for twenty-four years practicing in Idaho Springs. He can be reached at info@brucebrownlaw.com.
Bruce Brown, Attorney
Post Office Box 3366 ~ 1630 Miner Street ~ Idaho Springs, CO 80452
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Email: info@brucebrownlaw.com
