Privacy and Asset Protection - Conkle, Ellis, Fergus, and MacDowell

In a famous passage written in 1928, Supreme Court Justice Louis Brandeis said, “The makers of our Constitution . . . conferred, as against the government, the right to be let alone - the most comprehensive of rights and the right most valued. . . ."

The “right to be left alone” is the very essence of the individual freedom we as Americans enjoy. That is why the freedoms enumerated in the Bill of Rights are phrased as prohibitions directed at the government: “Congress Shall Make No Law”; “shall not be infringed”; “shall not be violated.”For Americans, individual rights and freedoms are not something bestowed by government – they are not a government benefit – but rather inherent rights and freedoms that exist independently of government.

The Constitution does not grant the rights contained in the Bill of Rights; rather, it prohibits the government from infringing them.The “right to be left alone” is being challenged by both the public and the private sector in ways that were technologically impossible and legally unthinkable only a few years ago. It has become difficult for normal, law-abiding people to protect their privacy and their freedom against unreasonable searches, surreptitious snooping, data mining, intrusive commercial solicitation, ID checks, and the like.
“Privacy” does not mean “data protection.” Most people (especially journalists), when discussing “privacy” these days, are actually referring to data protection. The confusion is unfortunate, but here’s a metaphor to distinguish the two: Privacy is taking a shower and no one is watching. Data protection is taking a shower in front of several video cameras, each of which is recording, and each of which is monitored by an unidentified person in some distant location – who is subject to some sort of guidelines as to how the information may be stored, safeguarded, disclosed, and used.
So how is privacy protection relevant in today’s society? Why would anyone want to enlist the assistance of attorneys to help them protect their privacy? There are numerous reasons. For example, if one owns a business, one may want to deny information about one’s residence, family, and wealth from those wishing to file nuisance lawsuits, or those with criminal intent. Anyone who has been the victim of ID theft will want to obtain redress and institute measures to ensure that it never happens again.
“Asset Protection” is related to privacy protection, and refers to the art of separating oneself from one’s assets without giving up beneficial enjoyment of those assets, and without necessarily giving up control of those assets. The purpose of doing so is to protect those assets in the event one is subject to a lawsuit. Asset protection, to work properly, must be legal and must not be done as an attempt to avert pending claims or lawsuits. Asset protection is often implemented as part of an estate plan.