Thursday, January 19, 2017

WWBD-What Would Brandeis Do?

In 1890 Louis Brandeis, as a young lawyer, was concerned about the use of the Kodak portable Brownie camera and journalists who wrote unseemly articles about celebrities, so much so that he and his law partner Samuel Warren developed the “right to be let alone” articulated in their article “The Right to Privacy” for the Harvard Law Review. Years later, Supreme Court Justice Brandeis expanded upon this concept in his famous 1928 dissenting opinion in Olmstead v. United States, enshrining the concept as a constitutional right to privacy.

Brandeis was one of the first to recognize the perils of technology and its impact on personal privacy and national security.  Modern jurists continue to cite Brandeis in their legal opinions regarding privacy rights, and his 1890 article continues to be one of the most cited law review articles

What would Brandeis think about fake news stories, such as the Pope endorsing Trump or Hillary running a child abuse ring from a DC pizzeria? What about Mark Zuckerberg’s claim that it was crazy to assert any role such fake news or Facebook might have had in our recent election? What would he think about WikiLeaks? Or Amazon echo devices as witnesses?  What about Russian interception of private emails and the North Korean hacking of the Sony Entertainment computer network? Would he praise Edward Snowden as a hero for his revelation of government surveillance of citizens’ phone and internet records? Would he support forcing Apple and others to assist law enforcement efforts to access consumer devices and bypass security features?

What is a reasonable expectation of privacy in this data-driven, technology reliant era of Facebook, Twitter, and Google?  

It is difficult to speculate how Brandeis might respond to these compelling issues and how he might reconcile the right to privacy with national security and the challenges of terrorism.

I am certain, however, that Brandeis would welcome robust discussion and debate about privacy in the digital age and these headline-grabbing issues. He was an advocate for common deliberation and reasoning based on the facts.

Mark your calendars for January 27, when just such a discussion will take place in Minneapolis  at 9:00 am as part of the Midwest Privacy Conference on Privacy and Data Security sponsored by Minnesota CLE. I will moderate a discussion with University of Minnesota Law Professor William McGeveran and Kenesa Ahmad (Chair of Women in Security and Privacy, San Francisco) entitled The Tension Between Privacy and Data Security: WWBD—What Would Brandeis Do?

With passionate discourse and reasoning we hope to keep the memory of Brandeis alive.

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