It is a time of social change, in which “instantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life; and numerous mechanical devices threaten” us with “mental pain and distress, far greater than could be inflicted by mere bodily injury.” How bad is it?
The press is overstepping in every direction the obvious bounds of propriety and of decency. Gossip is no longer the resource of the idle and of the vicious, but has become a trade, which is pursued with industry as well as effrontery. To satisfy a prurient taste, the details of sexual relations are spread broadcast in the columns of the daily papers. Each crop of unseemly gossip, thus harvested, becomes the seed of more, and, in direct proportion to its circulation, results in the lowering of social standards and of morality.
The time in question, of course, is December 1890. Thus did Louis Brandeis and co-author Samuel Warren inveigh in the Harvard Law Review, pointing out wrenching changes brought in the wake of technology’s progress (“the latest advances in photographic art have rendered it possible to take pictures surreptitiously”). In the process, they invent something called the right to privacy, “the right to be let alone.”
The matter is particularly timely today, given the polarizing figure of Edward Snowden, who has been given temporary asylum from U.S. authorities in Russia after having revealed the U.S. government’s unprecedented snooping on the American public, along with troves of information about U.S. intelligence operations. Is Snowden a hero for blowing the whistle on violation of the sacred right that Justice Brandeis pioneered, or is he a traitor for setting our country at risk in a time of dangers the likes of which any 19th-century writer could have never even contemplated?
To be sure, the particular evil that Brandeis and Warren sought to remedy, as the exerpts above make clear, was from an out-of-control press, not from any sort of governmental overreach. If anything, the cases cited in their article show particular solicitude for government officials, not a sentiment that the public needs protection from official surveillance. For example, they rely on the 1849 case of Prince Albert v. Strange to show that Queen Victoria and her consort could prevent dissemination of etchings that they made for their own pleasure. An even earlier case, Wyatt v. Wilson, commented in 1820 about George III, that “if one of the late king’s physicians had kept a diary of what he heard and saw,” he would not be permitted to publish it. (In case you forgot, that was the same George III who tried to prevent the Thirteen Colonies from gaining their independence in 1776, but by the time Brandeis was writing a century later, all seems to have been forgiven.)
So how would Louis Brandeis have viewed Edward Snowden? To conceptualize the matter, we have to go far forward in time from 1890.
An implacable enemy threatens the United States in an unprecedented way. The tens of thousands of fatalities it has already caused are impossible to number precisely. Worse, the threat reaches right into the homeland, as native sons and daughters are seduced into its philosophy of death, to the consternation and incomprehension of their nearest and dearest. Apologists like to point out that it is the dark side of an otherwise acceptable phenomenon, long observed in many parts of the world without fatal results. But the national consensus has finally swung into action.
The year currently under examination is 1928. The National Prohibition Act is in effect, to wage full-on war against Demon Rum and its other numerous offshoots. As part of their efforts to destroy the infrastructure of rum-running, federal officials engage in extensive wiretapping of telephones. The resulting challenge reaches the United States Supreme Court, the majority of which affirms the government’s authority to engage in that conduct in order to demolish the “conspiracy of amazing magnitude to import, possess and sell liquor unlawfully,” involving seagoing vessels, importation from abroad, smaller vessels for coastwise transportation, and a whole infrastructure involving “the employment of executives, salesmen, deliverymen, dispatchers, scouts, bookkeepers, collectors and an attorney.”
Justice Brandeis dissents. In Olmstead v. United States, he labels that exercise of governmental power unconstitutional — even though the telephone obviously was not invented when the Constitution was adopted. In his view, that fundamental charter has full application to “objects of which the Fathers could not have dreamed.” Its clauses “guaranteeing to the individual protection against specific abuses of power, must have a similar capacity of adaptation to a changing world.”
Indeed, the advancement of technology means only that “subtler and more far-reaching means of invading privacy have become available to the Government” and “in furnishing the Government with means of espionage, it is not likely to stop with wire-tapping.” Indeed, his words from almost a century ago seem prophetic about the technology that we see around us today:
Ways may some day be developed by which the Government, without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose to a jury the most intimate occurrences of the home. Advances in the psychic and related sciences may bring means of exploring unexpressed beliefs, thoughts and emotions. [The types of activities condemned by earlier Supreme Court opinions], as a means of espionage, are but puny instruments of tyranny and oppression when compared with wire-tapping.
But what about the fact that the government wears the white hat here? Is it an adequate justification for these programs that they are undertaken for the pro-social purpose of protecting society from greater evil? No, said the great dissenter:
It is also immaterial that the intrusion was in aid of law enforcement. Experience should teach us to be most on our guard to protect liberty when the Government’s purposes are beneficent. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.
So, the initial indication is that, if the whistle-blowing aspects of United States v. Snowden were to be brought before him, Justice Brandeis would rule for the defendant. That consideration should certainly give pause to those who are calling for Snowden’s head. But, as Brandeis would be the first to recognize, new situations sometimes call for new solutions. The quintessential challenge is always how to venerate tradition at the same time that we reach the best way to react to fresh exigencies. That challenge lies at the essence of the legal enterprise, not to mention the Jewish enterprise — because it lies at the heart of the human enterprise.
David Nimmer practices copyright law at Irell & Manella LLP in Century City and teaches the subject at the UCLA School of Law.
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