I was listening to JT the Brick and Tom Looney the other evening, and they were discussing the appeal of Tom Brady’s so-called “DeflateGate” lawsuit against the NFL. Here’s a good recap of the how questioning in the appeal went.
JT focussed on Brady’s initial reluctance to give up his phone to NFL investigators, and the later revelation that Brady actually destroyed that phone. According to JT, this was indicative of a mindset of guilt. JT further poo-poo’ed the explanation that Tom Brady is a celebrity with a hot celebrity wife and maybe there was good reason to not want to hand over his phone to investigators.
Let’s put aside whether we like the Patriots, Bill Belichick, Tom Brady, Aaron Hernandez, Gronk, Wes Welker, etc. So much of the “discussion” of DeflateGate is colored by who’s a fan and who’s a hater. My own bias is not one of a fan per se — I rooted for the Seahawks in Super Bowl XLIX — but as an admirer of their style of play and ability to consistently compete for 15 years. Let’s grant that the Patriots organization and individual players are neither saints nor devils. Except Hernandez.
Let’s also put aside the science versus pseudo-science. As the recap article states, most of the so-called “facts” in the Wells Report that touch on science and measurement have been wholly debunked by real scientists. But let’s conjecture that someone at the league office once actually wrote down the equation
PV = nRT and kinda had some idea what it meant. (Aside, come on, that is high school chemistry, not even AP Chem. None of the sports journalists who initially reported on DeflateGate for 8 months remembered sleeping through that chapter? None could form a skeptical thought until the scientists weighed in?)
The operative questions here are whether NFL investigators could expect compliance with their demands for Brady to hand over his phone, and whether either legally or in public opinion, we should form a judgement about Brady’s culpability based on his refusal to hand over the phone, and additonally, to destroy or dispose of it.
First I’m going to tell you the answer to that. It’s not only no, but hell no. Legally and in public opinion, we should see the investigators as busy bodied nanny snoops for even making the request, let alone thinking they have any standing to make such a request. The right answer is what former Vice President Dick Cheney once told Senator Pat Leahy on the Senate floor (NSFW). An effective answer might be, “you will need to assault me to take the phone, and I will then press criminal charges against you… a-hole.”
The phone was Tom Brady’s phone. It did not belong to either the Patriots organization or the NFL. To any extent with which collective bargaining agreements or contracts gave either organization a right to search Brady’s phone on demand for evidence indicating potential cheating or on-the-job misbehavior, (a) the league still needs to bring legal action against him to compel him to give up his property, and (b) such provisions of employment contracts would typically be found both unenforceable and illegal in most states. That means that the request was the point that courts should have gotten involved if the league wanted anything more of the spectacle of a well-liked quarterback not complying with unreasonable private investigative demands.
“Well, if you don’t have anything to hide, Tom, you’ll let us have the phone.” No. This is plain disregard for Mr. Brady’s right to privacy. We Americans, especially sports fans, have a generally high regard for public law enforcement and even private institutions like the NFL that are conducting investigations of potential wrongdoing. Look, for example, at high public support for the FBI in its quest to compel Apple to decrypt a suspected terrorist’s iPhone. But note specifically how the NFL is not “the government”, deflating game balls is not “a felony”, yet we sports fans are quick to the investigators’ side in wondering why Brady would object to people rummaging through his phone.
Here is the reality of investigators prying into people’s phones. This guy wrote software which cracked older iPhones and he sold it as a crime fighting tool to legitimate law enforcement agencies.
The first uses of my iOS forensics tools were in terrorism and kidnapping cases. Not long after, cops were using it for girlfriends’ phones.
— Jonathan Ździarski (@JZdziarski) February 29, 2016
This is the practical outcome of handing your data over to any investigator, public or private (Brady). Or, forcing companies to cooperate with law enforcement by creating tools they can use to break into phones (FBI v. Apple). While we hold the individual officers and investigators at the highest levels of respect and trust, the actual data on what happens with these tools does not reflect kindly on the actual behavior of people we trust to protect us.
I suspect that among the people Tom Brady pays for legal and technical advice, someone has made it very clear to him that he should never give up his phone voluntarily for precisely the reason contained in the tweet above. Any of us that carry our personal phones into our workplaces ought to feel instant empathy with Tom Brady, regardless of our sports fan loyalties. A boundary of privacy, protecting us from both government and private corporate behemoths, ought to be bigger than teams and players for whom we root.
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