Sunday, October 30, 2016

Private versus Public Lives

Is it OK to have a private life and public life that conflict with one another?

A recent decision from the Court of Appeals for the Federal Circuit held that communications between a Patent Applicant and Patent Agents - who are not attorneys - may indeed by privileged as are Attorney-Client communications.   To the extent that a Patent Agent is giving legal advice, that advice and communications between the Agent and Client may be privileged, which means they may not be subpoenaed or used in court.

The concept of Attorney-Client privilege goes back for hundreds of years.  The basic idea is that a client should be able to talk frankly with an Attorney without having what they say be used against them in a court of law.   So, for example, if a client says to his attorney, "Let's assume I did murder my wife, what would the longest sentence be?" that might be a damning admission if put in front a jury.   But in order to understand his options via-a-vis a plea bargain or the like, he might have to ask these questions and his attorney would have to advise him.

When I was working on a Cable Television litigation, we discovered a document (provided by a bitter former employee of our opponent) from their attorney saying, "We need to file this Patent right away as we may have missed the bar date and it may be invalid!"   We were excited to find this document, as it was as clear indication that our theory of the case (the Patent was invalid due to lapse of the bar date) was validated.   Sadly, the Judge would not allow this memo into court, as it was clearly advice from the Attorney to a client, and thus was shielded by Attorney-Client privilege.   Oddly enough, even though the former employee brought us a carbon copy of this memo, the opponent never mentioned the document on its privileged document list.   They likely knew about it and lied about it, or someone destroyed remaining copies of the memo.

There are other confidences like this that we generally don't allow in court, or at least allow to be excised.   A person is not compelled to testify against their spouse in court.   A minister or priest is generally bound not to disclose the confidences of the confession (except in limited circumstances).   There are valid reasons for these exceptions.   For the most part, it is to prevent our private lives turning into public lives.   Imagine our interaction with our spouses if we knew everything we said or did was being recorded and put on Facebook.   It simply wouldn't work.

But that right there is the problem.   Today with electronic communications recording everything we say or do, it is getting harder and harder to have a "private life" or private conversation, without having what we say be made public.

Richard Nixon discovered this the hard way.  The taping system set up by his predecessors to record conversations "for posterity" ended up being played for a contemporary audience, leading to his downfall.  Sometimes it is best not to document every last thing.

Confidential discussions end up as public discussions.   And in many cases, what was said can be taken out of context and made into a political attack.  And today, there are so many more ways for private conversations to be made public.

E-mails are in the news today.   People tend to think of e-mail conversations as private, but they are anything but.   Once you put a conversation down on paper, it is a document - a document that can hang you.  And sadly, e-mails are just electronic documents.   And they can hang you in a number of ways.

For example, you sent a ribald off-color joke to a friend via e-mail.   A pretty dumb thing to do.   That "friend" then forwards it to his entire contact list.   On that list is a friend-of-a-friend of yours who in turns forwards it to another friend of yours - one that is not impressed with your juvenile humor.   What you thought was a private conversation becomes a public one in short order.

And yet it is tempting to think that an e-mail is an intimate, private conversation.

Many people "save" e-mails, either intentionally or accidentally.   Most e-mail accounts will save "sent" e-mails, so even if you think you have deleted your e-mails, they are still present on a server somewhere.   And of course, even if you (or your IT person) deletes say, 33,000 e-mails (!!) the recipient of those e-mails may have them in their account.  Such was the fate of Hillary Clinton, whose campaign chairman fell for the oldest gag in the book - the "someone has hacked your e-mail, click here to reset your password!" trick.

I received a similar e-mail recently, ostensibly from "Google" saying that "Someone from Nigeria" had tried to log into my account and that I should "click here" to reset my password.   Of course, it was fake.   And if you are not sure, then go to your e-mail account and change your password.   NEVER EVER click on attached links or open attached documents.

Of course, part of the problem is the e-mail companies themselves.   I have received legitimate e-mails from Google, Hotmail, and Yahoo! asking me to click on attached links.   I never do, just out of principle.

After lengthy investigation, none of the e-mails in Hillary's account were deemed to be a violation of the law.  And this latest batch doesn't indicate any violation of the law has occurred either.  The tempest in a teapot is that the FBI is "reading" them (as they should, I guess) to see if there is a problem.   But no problem has been found - yet.   This hasn't stopped Trump from claiming the "greatest scandal since Watergate" - without getting specific on what the scandal exactly is (then again, he never gets specific about much, does he?).

But a couple of things struck me about this.   First, today we don't have private lives much anymore.   Whether you are a politician or a celebrity - or even just some average schmuck - it seems everyone has a "right" to your private life, your private deliberations, and even your thoughts.

Not long ago, in this country, a President could have an extra-martial affair and no one in the public knew about it, even if the press was well aware.  A President could be confined to a wheelchair for four Presidential terms and the entire population of the United States would not be in the know.  Why was this?  Well, back then, we viewed a person in terms of their private life (which was none of our business) and public life (which was the sole source of our judgment).    What was important to us about FDR wasn't whether he could walk or not, but what his political positions and policies were - which was far more important.

Today, he would be called out as being "unfit" for office and never would have been elected, four times. 

Similarly, with celebrities, we seem to care more about their private lives that what they actually did to become celebrities.   In fact, some celebrities are nothing more than scandalous private lives - such as the Kardashians.   They really have done nothing of merit in terms of starring in movies or whatnot.  Rather, we just hang on their every word and latest scandal (well, maybe you do, I barely know how to spell their name).

Not long ago, a dashing "leading man" actor who made all the women swoon, might have a private life that was anything but.  Whether it is Cary Grant or Rock Hudson, the private life and public persona were entirely opposed.   Or consider this song, by the Cordettes from 1954, describing their dream of the perfect man:

Mr. Sandman bring us a dream
Give him a pair of eyes with a "come-hither" gleam
Give him a lonely heart like Pagliacci
And lots of wavy hair like Liberace

Back then, you could be as gay as Liberace and still viewed as a dream-boat by women.  Ironic, no?
But beyond that, we obsess about the details of celebrities' personal lives.  Take Brad Pitt.   A great actor who is easy on the eye.  I like the movies he has appeared in.   I could care less who he is married to or whether he is getting a divorce.   The press, however, concentrates more on the private life than the public persona.   A movie he stars in might get a few columns of reviews.   But his personal life takes up pages and pages of newspapers and magazines - as it somehow it was important to us.

And as I noted before, "Fans" are largely to blame for this - people who obsess about celebrities and their private lives, rather than merely enjoying their performances and entertainments.   How does knowing the name of Brad Pitt's children enhance the experience of viewing a movie he stars in?   It doesn't.  If anything, it detracts, as you are no longer seeing an actor playing a role, but instead an actor.

But I digress.  Fans suck.

The second thing that struck me was the dichotomy between Hillary and Donald regarding their private and public lives.   Hillary (and her aides) have discussed in e-mails various strategies and policies for the campaign, which is to be expected.   An aide may float a trial balloon and then have it shot down.   Some things may be said that - particularly when taken out of context - sound ugly.   But really, if you read these e-mails, nothing criminal or wrong is being said.   You are, however, privy to the sausage-making that is going on behind the scenes.

On the other hand, if you want to read something ugly or embarrassing said by Trump or one of his minions, all you need to do is read his Twitter feed, or listen to a speech or hear one of his associates awkwardly try to defend him on the Sunday talk shows.   The ugliness of Trump is right out there for everyone to see, and he's proud of it.   There is no "private life" with Trump, and he apparently doesn't give a rat's ass.  Maybe this is part of his appeal.

Every scandal, every outrageous thing, every bankruptcy - they are all out there for everyone to see.   But most don't choose to look.   And Trump, being a "celebrity" and not really a politician, understands this well.   14 years on a "Reality Television" show taught him what most Americans really like - or at least that huge number who watch cable TV all day long.   They want "dirt".  They want arguments.  They want controversy.  They want scandal.

What they don't want is to be bored.  And Trump provides them with lots of excitement - whether it is based on "Reality" or not.

But it seems to me that we have lost something along the way here.  There should be a private life, even for celebrities, and certainly for politicians.   We should be judging the latter based on their prior public lives and their future policy positions, rather than on who-said-what-to-who.   It seems we are doing just the opposite these days.   We ignore Trump's numerous bankruptcies and lawsuits, and his utter failure as  businessman.  We ignore the pleas of the thousands or tens of thousands of people he has stiffed over the years.   We ignore the outrageous things he says in public.   Rather, we concentrate on what some aid to Hillary said in a aprivate e-mail chain three years ago when discussing a campaign strategy.

I find this quite odd.