Psst! You're on the air - Albuquerque Journal

Psst! You’re on the air

Los Angeles Clippers owner Donald Sterling candidly expresses racist opinions in a private conversation with his girlfriend, lecturing her that she shouldn’t be seen with black people.

Toronto Mayor Rob Ford falls off the wagon and lights up a crack pipe in his sister’s basement.

President Barack Obama is caught on an open mic telling Russian President Dmitry Medvedev he will have “more flexibility” in dealing with the Russians on missile defense after his re-election.

New Mexico Gov. Susana Martinez refers to her opponent using the B-word during her 2010 campaign debate preparation with members of her campaign team.

Shortly after her election, her chief of staff, Keith Gardner, expresses his dislike of a prominent politician in vulgar terms in a private conversation in the office of a friend.

We know about all of these private acts and communications, because they didn’t stay private. They became – to one degree or another – news. And that news became fodder for the chattering crowd.

Some questions I’ve been considering:

Should information delivered in private be ignored? Revealed only under certain circumstances? Blown out in all its salacious glory?

Should the way in which the information becomes public have any bearing on the judgments made about its content?

Should any of us anymore have any expectation of privacy – anywhere?

At the risk of stirring up a bee’s nest again, I’ll go back to the recent Mother Jones magazine story that included audio of the B-word quote. I thought some of the most interesting reactions to that story and my column about it came from people who were more offended by the magazine using proffered audiotapes – some use the word “stolen,” although I’m not sure that’s accurate in this case – than by the comments caught on the tapes. Some people disregarded the content completely, because the expectation of privacy had been breached.

It’s an issue that’s ripe for discussion in these heavily surveilled times, and I asked media lawyer Martin Esquivel his thoughts on the current landscape.

“The scope of a reasonable expectation of privacy has eroded significantly in the past 20 years,” he said, “and I think in a large part because of the Digital Age and the willingness of nontraditional journalists to push the envelope.”

The politician’s slip on an open mic is as old as microphones, but modern technology has added new pitfalls. Recording devices are becoming smaller, and more communication is conducted by text message and email while at the same time more media sources exist on TV and online for a leaker to shop information to.

“I think people have to be a lot more careful,” Esquivel said.

For certain, Martinez and her campaign staff were speaking in a private setting with an expectation their exchanges would be held in confidence. The magazine hasn’t revealed its source, but the tapes would have been available only to people who worked on the campaign. The signs point to a former insider who had access to the information, not a theft of information by an outsider. It’s not surprising; it’s our frenemies who have the most access to our intimate and unguarded thoughts.

“You might hope and pray that those around you in debate preparation are ultimately going to be loyal to you,” Esquivel said. “But if a court were to look at this and ask, ‘Is it reasonable in the ugly world of politics that one of your colleagues can go south and rat you out and maybe you should be more careful?’ They’re probably going to say, ‘You said what you said and it’s unfortunate, but you said it.’ ”

Then again, there are laws governing “secret” recordings. In New Mexico, it is legal to record a conversation in which you are participating without telling the other person or persons in the conversation. (As for surreptitiously recording a conversation you’re not a part of, that’s illegal.)

In some other states, including California, where Sterling talked race with his girlfriend, the law requires that all parties be told the conversation is being recorded, and much has been made of the suggestion that Sterling asked her to record their conversations.

So this is where we find ourselves: News media sources look at information proffered by leakers and make judgments about whether to pass it along to their customers. News media customers make judgments about whether they thought the media made the right call. And the target of the leak takes the knocks – or doesn’t – in the court of public opinion.

Sterling of the Clippers got hammered, even though it was gossipy TMZ that outed him, probably because his comments were so repugnant.

Toronto’s Ford is headed to rehab.

And Martinez got a fundraising bump and an effective campaign talking point – “the left-wing liberal media is trying to take me down” – that could potentially outweigh any damage.

Leaking of embarrassing information doesn’t have regard for political party – it strikes victims on both sides of the aisle – but it does target those in power. The goal of the leaker is to point out some gap between public and private statements or behavior. While the powerful are the current targets today, who knows where this will go?

“I think it’s the world that we live in,” Esquivel says. “And I think it’s only going to get worse. Once it’s out there and it’s on tape, it is what it is and you said what you said and you can’t take it back.”

UpFront is a daily front-page news and opinion column. Comment directly to Leslie at 823-3914 or llinthicum@abqjournal.com. Go to abqjournal.com/letters/new to submit a letter to the editor.

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