What Would Brandeis Think?

In 1890, Louis Brandeis and Samuel Warren wrote their seminal Harvard Law Review article “The Right To Privacy,” suggesting that government and the media had gone way too far in invading the privacy rights of individuals and arguing that legal remedies were necessary to combat the then-intrusive technology known as “photography.”

What would Brandeis think about Snowden, the Internet, Google Glass® and drones?

I am not sure what his views would be on new technology or government surveillance, but I do believe that Brandeis would have enjoyed A Legal Guide to Privacy and Data Security, a Minnesota CLE class presented this past Monday, and that he would have found the presentations and discussions intriguing.  

The CLE, attended by over 150 lawyers, covered issues from the origins of privacy rights to issues of data breach and security. Topics also included big data as well as key federal, state, and global privacy laws and regulations. The Privacy Guidebook prepared by Gray Plant Mooty was used as the written material for this CLE. 

In setting the stage for the day, I invoked Brandeis as an early champion of privacy rights, as evidenced by both his law review article and his dissent as a Supreme Court Justice in Olmstead v. United States (1928). In Olmstead, the Supreme Court found that wiretapping the phones of a bootlegger was not a violation of the Fourth Amendment. There was no trespass since the phone lines were tapped from outside the bootlegger’s home. Brandeis disagreed, stating that it should make no difference where the physical connection with the telephone wires was made. According to Brandeis, the Constitution “conferred, as against the Government, the right to be let alone—the most comprehensive of rights and the right most valued by civilized men.”

Brandeis became a champion of the right to privacy during his tenure as a member of the Supreme Court from 1916 to 1936.  Jurists have continued to expand upon his early views on privacy and still look to his Olmstead dissent and his law review article as support for further legal protection of privacy. 

While you may have missed your opportunity to attend a live presentation of this CLE, there will be two video replays in Minneapolis—September 4 and September 23—with others scheduled at later dates in Duluth, Mankato, St. Cloud, Marshall, and Moorhead.  Click here to view the CLE brochure and information on the video replays.