A few people on the Volokh Conspiracy have complained that some of my posts seem to be deriding privacy advocates. I think that’s close, but not quite right. We all believe in privacy, certainly I do. But as I see it, today’s privacy advocates, often in alliance with industry (what I called the “privacy-industrial complex”), have begun to do real harm to our ability to respond to new technological threats, and when they do, they deserve at least good-humored criticism.
My run-ins with the privacy community have also led me to spend some time thinking about why privacy advocates are the way they are.
Poking around in the history of privacy was actually quite illuminating. I’m excerpting below a passage from Skating on Stilts. In it, I conclude that reactionary Luddism is an inextricable part of the privacy movement, at least when it deals with new technology.
(And, for those who think I’m flogging my book with too much enthusiasm, I can offer one defense: at least it’s free. The chapter that this excerpt comes from is now available under a Creative Commons license at the Skating On Stilts website.)
***
In the 1880s, Samuel Dennis Warren was near the top of the Boston aristocracy. His father was a self-made paper-manufacturing tycoon. His wife, Mabel Bayard Warren, was the daughter of a U.S. senator and secretary of state.
Warren himself was no slouch. He had finished second in his class at Harvard Law School. He founded a law firm with the man who finished just ahead of him, Louis Brandeis, and they prospered mightily. Brandeis was a brilliant, creative lawyer and social reformer who would eventually become a great Supreme Court justice.
But Samuel Dennis Warren was haunted. There was a canker in the rose of his life. His wife was a great hostess, and her parties were carefully planned. When Warren’s cousin married, Mabel Warren held a wedding breakfast and filled her house with flowers for the event. The papers described her home as a “veritable floral bower.”
No one should have to put up with this.
Surely you see the problem.
No? Well, Brandeis did.
He and Warren both thought that, by covering a private social event, the newspapers had reached new heights of impertinence and intrusiveness. The parties and guest lists of a Boston Brahmin and his wife were no one’s business but their own, he thought.
And so was born the right to privacy.
Angered by the press coverage of these private events, Brandeis and Warren wrote one of the most frequently cited law review articles ever published.
In fact, “The Right to Privacy,” which appeared in the 1890 Harvard Law Review, is more often cited than read—for good reason, as we’ll see. But a close reading of the article actually tells us a lot about the modern concept of privacy.
Brandeis, also the father of the policy-oriented legal brief, begins the article with a candid exposition of the policy reasons why courts should recognize a new right to privacy. His argument is uncompromising:
The press is overstepping in every direction the obvious bounds of
propriety and of decency. Gossip is no longer the resource of the
and of the vicious, but has become a trade, which is pursued with
industry as well as effrontery . . . To occupy the indolent, column
upon column is filled with idle gossip, which can only be procured
by intrusion upon the domestic circle. The intensity and complexity
of life, attendant upon advancing civilization, have rendered necessary
some retreat from the world, and man, under the refining
influence of culture, has become more sensitive to publicity, so that
solitude and privacy have become more essential to the individual;
but modern enterprise and invention have, through invasions upon
his privacy, subjected him to mental pain and distress, far greater
than could be inflicted by mere bodily injury . . . Even gossip apparently
harmless, when widely and persistently circulated, is potent
for evil . . . When personal gossip attains the dignity of print, and
crowds the space available for matters of real interest to the community,
what wonder that the ignorant and thoughtless mistake
its relative importance . . . Triviality destroys at once robustness of
thought and delicacy of feeling.
What does Brandeis mean by this? To be brief, he thinks it should be illegal for the newspapers to publish harmless information about himself, his partner, and their families. That, he says, is idle gossip, and it distracts “ignorant and thoughtless” newspaper readers from more highminded subjects. It also afflicts the refined and cultured members of society—like, say, Samuel Dennis Warren and his wife—who need solitude but who are instead harassed by the fruits of “modern enterprise and invention.”
What’s remarkable about “The Right to Privacy” is that the article’s title still invokes reverence, even though its substance is, well, laughable.
Is there anyone alive who thinks it should be illegal for the media to reveal the guest-list at a prominent socialite’s dinner party or to describe how elaborate the floral arrangements were? Today, it’s more likely that the hostess of a prominent dinner party will blog it in advance, and that the guests will send Twitter updates while it’s under way. For most socialites, what would really hurt is a lack of media coverage. To be blunt, when he complains so bitterly about media interest in a dinner party, Brandeis sounds to modern ears like a wuss.
Equally peculiar is the suggestion that we should keep such information from the inferior classes lest they abandon self-improvement and wallow instead in gossip about their betters.
That makes Brandeis sound like a wuss and a snob.
He does sound quite up-to-date when he complains that “modern enterprise and invention” are invading our solitude. That is a familiar complaint. It’s what privacy advocates are saying today about Google, not to mention the NSA. Until you realize that he’s complaining about the scourge of “instantaneous photographs and newspaper enterprise.”
Huh? Brandeis evidently thinks that publishing a private citizen’s photo in the newspaper causes “mental pain and distress, far greater than could be inflicted by mere bodily injury.”
If we agreed today, of course, we probably wouldn’t have posted 3.5 billion photographs of ourselves and our friends on Flickr.
Anachronistic as it seems, the spirit of Brandeis’s article is still the spirit of the privacy movement. The right to privacy was born as a reactionary defense of the status quo, and so it remains. Then, as now, new technology suddenly made it possible to spread information more cheaply and more easily. This was new, and uncomfortable. But apart from a howl of pain—pain “far greater than . . . mere bodily injury”—Brandeis doesn’t tell us why it’s so bad.
I guess you had to be there.
…
Laura(southernxyl) says:
Maybe you had to be there, but you can get an idea from reading period literature. It was taken for granted that people with any kind of class went to great lengths to keep themselves out of the newspaper even regarding benign events like weddings.
I wonder if he’d think the number of headlines one can’t avoid seeing about Brittney, Kate, Angelina, etc., would have confirmed his apprehension. Because there are a whole lot of them. Somebody must be reading the actual articles or they wouldn’t keep putting them out there.
June 13, 2010, 1:36 pmbob lipton says:
A gentlewoman’s name appears in the papers three times: when she is born, when she is wed and when she dies.
Bob
June 13, 2010, 1:47 pmgiwghfvi34rihighb says:
Sometimes the threat is a terrorist. Other times the threat is a government abusing it’s power. I think it is much more likely that someone in this country will use private information to harm me than I will be harmed by a terrorist attack.
The vast majority of annoyances that one has to incur when flying have the effect of making people think the government is doing something rather than really protecting us. How many people are harmed by over zealous bullies in the TSA harassing harmless travelers? Power corrupts. Information is power.
What about that fellow who had a swat team show up at his house because he bought a gun after losing his job?
Who will protect us from the police? We have to place limits on the government use of information or it will be abused.
June 13, 2010, 1:50 pmdearieme says:
It’s not often that I’ve come across a Volokh Conspiracy posting with a tone that is simultaneously hectoring, bullying and triumphalist.
June 13, 2010, 2:01 pmDuracomm says:
The root of many of these complaints is not your criticism of your favorite bogeyman the “privacy-industrial complex”.
The root of the criticism is your deluded, and apparently consistent, belief that increasing government involvement and regulation of things like US IT infrastructure will increase security and safety.
History and numerous, ongoing real world examples show that belief is very, very, damaging to US safety and security.
We should be exceedingly cautious about increasing government involvement because of the very real risk it poses to safety, security, and incident response.
June 13, 2010, 2:02 pmClarke says:
As a privacy advocate, I have always known that Brandeis seminal article was born of what was in essence a personal and class-based grudge.
But its source does not diminish the genuineness nor its propriety of a right to privacy.
Data from horrible experiments on prisoners conducted by Axis powers in WWII, has provided useful insight used by our own military to save lives. Warren and Brandeis’ personal stake does not invalidate their reasoning.
Notably, the evolution of the right to privacy has not been nearly as expansive and Brandeis would have wanted. We can debate the edges, but the core is a decidedly good thing.
June 13, 2010, 2:07 pmarch1 says:
Brandeis’ words flow so easily, evincing such erudition, refinement, and facility with the language, that they tend to suppress critical evaluation. I’m reminded of my Dad buying me a plain English Bible so that (I concluded years later) I could better evaluate the ideas independent of the flowery and sometimes beautiful prose.
Maybe in 10-15 years natural language AI software will be mature enough to help with this (what’s really being said is this…).
June 13, 2010, 2:18 pmstewart baker says:
Actually, Clarke, I think it runs deeper than that. In twenty years, Brandeis’s objection to photography and newspapers isn’t really going to look different from our objection to the loss of anonymity and the spread of data about ourselves. We’ve gotten used to the first but not to the second, so we don’t see the parallel. I lay all this out in much more detail in the chapter. Let me know if you disagree after you read the whole thing.
June 13, 2010, 2:24 pmMike says:
It also afflicts the refined and cultured members of society—like, say, Samuel Dennis Warren and his wife—who need solitude but who are instead harassed by the fruits of “modern enterprise and invention.”
The paparazzi have caused several car wrecks, and are a major annoyance. That’s a fact, right?
Maybe this is a non-issue to you, since you’re not someone anyone cares to follow around with a camera. To many people, though the paparazzi are something between a minor annoyance and a deadly threat.
June 13, 2010, 2:28 pmothersi says:
Stewart Baker – self-promoting hack or genuine threat to people’s privacy?
June 13, 2010, 2:38 pmstewart baker says:
Take a look at the rest of the chapter. I actually spend time on what might be called the Britney problem — and how the effort to turn privacy into a property right has instead turned it into a commodity. (Unless that’s in the next chapter, which I’ll post pretty soon.)
June 13, 2010, 2:39 pmstewart baker says:
Who says I have to choose?
June 13, 2010, 2:41 pmPrivacy Luddite says:
Illegal, no. Improper, yes.
When celebrities go out of their way to seek publicity (Paris Hilton, Lindsay Lohan), then they become fair game. OTOH, if Bill Gates or Meryl Streep wants to have a private wedding or week at the beach, I think it’s pretty tacky to not honor their wish.
There are exceptions, to be sure, like when a strident ‘family values’ politician gets caught hiring an escort service boy toy for a European fling, but I can’t agree that it is ethical or proper to just publicize any detail about anyone, just because you can.
June 13, 2010, 2:43 pmDan Lavatan says:
I disagree with your assertion that privacy advocates are anti-technology. I’m an engineer in the high-tech industry, and most engineers believe privacy is important. Privacy advocates use technology such as whole-drive encryption to help protect ourselves.
I think there is a vast difference between complaining about an unfavorable article, and using soverign power to to impose intrusiveness as a condition of travel. While perhaps society as a whole would be better if people had no modesty, most people today value privacy and there are practical reasons for wanting to keep strategic business information secure.
More to the point, you unmitigated faith in government is misguided. I don’t doubt that terrorists will launch a destructive cyber-attack against US inhabitants. However, I’m quite certain than no amount of regulation or duplication of infrastructure can mitigate that attack, rather it will divert scarce security resources into compling with the regulations rather than doing their job.
The best thing that the government can do is follow best practices to secure its own systems, which would be made much easier by reducing the size of govenment and hence the number of systems. Then we need to recogize that the President is basically powerless and adapt.
June 13, 2010, 2:59 pmguest890 says:
Brandeis’s complaints are outdated and laughable by modern social standards.
But that’s exactly the point–in his day, it could legitimately be considered an affront to publish details of a private social engagement. The fact that this is now commonplace is simply strong evidence that the privacy advocates were right and the slippery slope is very real. Newspapers start publishing the details of socialites’ parties, and some time later we have a culture where it is expected that every last detail of every moment of every celebrity’s life is endlessly reported and analyzed. This leads to a culture familiar with exposure of daily life details, which sleazy companies like Facebook decide to encourage and market among regular people under the guise of connectedness.
Simply stating that social mores have changed and what offended Brandeis is now considered normal is not an argument against privacy. First of all, you would have to make the case that today’s social norms with respect to privacy are better than the ones that existed 130 years ago, not just different. We are of course tempted to say that they are, because they’re familiar–but that’s just chronological snobbery.
Similarly, instead of making ad-hominem attacks[1] against those concerned about privacy today (by referring to the “privacy-industrial complex”[2] and “Luddism”), state why having less privacy is better–and be sure to address not just the immediate details of the privacy issue being addressed, but the logical extensions[3] of the changes in social mores that are likely to result. (Particularly keeping in mind that federal power is very close to a one-way ratchet–once you give up a certain power to the government, it is nearly impossible to get it back.)
[1] I have generally tried to address the substance and logical flaws of your argument, but I agree with the other commenters that your tone is unnecessarily snobbish. Saying that you were led to “spend some time thinking about why privacy advocates are the way they are” sounds like you’re an anthropologist studying a primitive tribe, or an ivory-tower academic pontificating about how the rubes think. Turn it around and spend some time thinking about “why privacy opponents [e.g. yourself] are the way they are.”
June 13, 2010, 3:03 pm[2] I still don’t understand the “privacy-industrial complex” bit, since it seems there’s at least as much industry geared toward getting people to give up their privacy (e.g. Facebook) or at least going along with governmental attempts to reduce privacy (e.g. telecoms) as there is trying to protect it.
[3] I seem to remember some law professor writing about the slippery slope. Eugene…Eugene something-or-other.
advisory opinion says:
I like how the knee-jerk privacy luddites are so utterly hidebound and conventional in their thinking on privacy that they can’t abide Baker’s contrary (-rian?) views on it without bristling with reactionary hostility. Proof positive that Brandeis’s spirit still animates conventional thinking on privacy. That “[i]n twenty years, Brandeis’s objection to photography and newspapers isn’t really going to look different from our objection to the loss of anonymity and the spread of data about ourselves” is actually quite an interesting piece of insight that bears thinking about.
June 13, 2010, 3:14 pmtroll_dc2 says:
Can anyone tell me what the right of privacy really is? I understand what rights are, and I have a pretty decent concept of privacy, but the idea of setting it out as a law strikes me as futile. Certainly there are laws covering specific behavior. In fact, the Fourth Amendment sort of addresses that matter in part. I can also see a law regulating what Internet sites can collect and spread. But the overall concept is fuzzy; no matter how it is stated, there are, and have to be, exceptions for national-security or criminal probes and other matters of public interest. Not only that, but there can be First Amendment issues as well. (Time-Life v. Hill, if I remember.) I think that if there is a “right,” it is a “soft” one that describes what is left over after everyone else’s needs are met.
Privacy might better be regarded as an aspiration.
June 13, 2010, 3:29 pmCharlie says:
Perhaps they aren’t objecting to the substance of his writing so much as to the tone. For example, if a commenter on a blog were to call people “knee-jerk” “luddites” and accuse them (without quoting them or providing examples) of being “hidebound”, “conventional in their thinking” and ruled by “reactionary hostility,” then one might reasonably conclude that there’s no point in trying to have a civil and productive discussion with that person.
June 13, 2010, 3:29 pmS says:
Certainly. Most of us do, if it involves theft or trespass, for instance. Or false light or slander, etc., etc.
You “believe in privacy”? Then you can thank Mr. Justice Brandies for articulating an important interest these laws protect.
Was it your intent to sound like both a wuss and a snob, as well as ignorant?
June 13, 2010, 3:34 pmAlan Gunn says:
By normal legal standards, the Warren and Brandeis proposal has been a failure. The law never seriously tried to stop newspapers from publishing information about the social lives of prominent persons. And what limited protection the law does afford privacy did not come about by extension of the principles of common-law copyright, which was Warren and Brandeis’s main argument. Indeed, common-law copyright, which did protect privacy by barring unauthorized use of unpublished works, has itself been killed off by statute. I suspect that the Warren and Brandeis article is remembered only because of its title and the prominence of one of its authors. Whatever the merits of trying to use the law to protect privacy, it seems clear that Warren and Brandeis have nothing important to say about the subject, and never did have.
June 13, 2010, 3:35 pmLaura(southernxyl) says:
Please tell me the irony is intentional.
I encouraged my daughter, while in middle and high school, to intersperse with her Goosebumps and Babysitters’ Club and Tamora Pierce and all, literature by authors like Alcott and Austen. Not to prepare her for life in the 19th century, but to get her to internalize the idea that current ideas of social acceptability are very different than they used to be. I wanted her to feel free to chart her own course, to determine for herself independently of what other people tell her, what is and is not moral and acceptable for her personally, and as far as I can tell, she’s done it.
June 13, 2010, 3:48 pmOhgoodgrief says:
The media (print or other) have always been used by the clever and acquisitive to gather and hold onto power and prestige. That some harm occasionally comes to those who partake in the game is simply a part of the process. Private citizens not involved in nefarious activity should be permitted their privacy -unless they, by choice, open the door.
June 13, 2010, 4:12 pmadvisory opinion says:
See, e.g., Othersi at 2:38 pm and Dearieme at 2:01 pm, both quite facilely dismissive of Baker’s point. Anyone reading their comments would be forgiven for thinking that Baker hadn’t even said anything remotely interesting that merited more thoughtful consideration.
June 13, 2010, 4:19 pmLegalCookie says:
Actually, I happen to be writing a research paper on this topic right now.
The conventional wisdom about why Warren & Brandeis wrote the article is ridiculously wrong–and stems almost exclusively from Dean Prosser’s article in the 60s, where he apparently made it up.
In reality, the only actual evidence we have for why they wrote it is a lettered exchange between the authors 15 years after the fact. Brandeis wrote: “My own recollection is that it was not Godkin’s article but a specific suggestion of yours, as well as your deep-seated abhorrence of the invasions of social privacy, which led to our taking up the inquiry.”
Warren replied: “You are right of course about the genesis of the article.”
No mention of an event, or anger at wedding coverage, or anything of the sort. Just that Warren really didn’t like press coverage, and Brandeis went along with it.
June 13, 2010, 4:47 pmKen Arromdee says:
I’m reminded of those tracts which tried to give scientific exmpalantions of why slaves would run away. I believe they blamed it on a disease.
Once you’ve refuted the obvious possibilities and the stated reasons first, then maybe it might make sense to figure out if it has anything to do with historical Luddism. Otherwise this is just an ad-hominem attack. (My opponents are making points? That you want me to address? Naah, there must be some deep subtle psychological and historical reason why they disagree with me.)
June 13, 2010, 5:20 pmHans says:
Great post!
The privacy chicken littles are insufferable.
The idea that privacy rights apply against other private people — and not just the government — is a threat to the First Amendment.
And why do most privacy-obsessives think other people even CARE about their boring lives anyway?
On another note, people who harbor the paranoid belief that the CIA wants to monitor their every move should keep it to themselves. People like that used to call me seeking legal assistance when I worked for a non-profit law firm, and they were very annoying.
June 13, 2010, 6:04 pmPersonFromPorlock says:
This could, of course, be taken as saying something about modern ears. But perhaps the articles describing President Obama’s daughter’s wedding night will be quite charming, once our ears get modern enough.
June 13, 2010, 6:43 pmtroll_dc2 says:
Mr. Baker, care to comment on the proposed legislation that would require buyers of prepaid cell phones (used by terror suspects, drug dealers, and gang members) to produce identification? The legislation is being objected to on the ground that it would violate users’ privacy.
June 13, 2010, 6:57 pmOwen H. says:
What I find odd in the privacy debates is how often the same people decry things like Red Light and Speed Cameras as invasions of their privacy, yet turn around and declare that someone else wearing a veil over their face is a security issue over-riding any privacy or religious aspects.
June 13, 2010, 9:20 pmRichard Lyon says:
I’ve read the intro and first two chapters – there is a lot of propaganda there. There are some valid points, but it all boils down to, Do we want to live in a safe country, or a free country? The two are mutually incompatible.
Airport security should not have the powers related in chapter two, in applying them to American Citizens. Being able to screen folks like that who are not citizens is clearly constitutional, but its equally clear that it would be unconstitutional as applied to a Citizen. (At least for the federal government, its not as clear cut for the states). Though, nobody pays any attention to the Constitution anymore, so its probably mute, on that point.
Just because a private citizen can do something, does not mean that said citizen can do the same thing when he gets to his job for the federal government. Something that is perfectly acceptable for any private citizen to do, is not acceptable for a government employee. Reason being – the government has been granted an ability to compel. That carries the huge danger that the government will forget that they are not the ones in power, that the people are. Which is a problem that is becoming more and more common.
And Lous Brandeis was neither a snob, nor a wuss. He was a man ahead of his time.
June 13, 2010, 9:25 pmJohn Thacker says:
Because his “point” was simply ad hominem. Anytime you read something that purports to explain “why [X] advocates are the way they are,” you should be suspicious. His “[p]oking around in the history of privacy,” where he concludes that “reactionary Luddism is an inextricable part of the privacy movement,” is as convincing as explanations that racism is an inextricable part of the pro-choice and family planning movement. Certainly no one discussing the issues today should expect the argument to be settled on the basis of Sanger’s racism.
His “point” needs rebutting as much as a point on the privacy side claiming that anyone who calls for emergency government powers is a secret dictator wanting a Reichstag fire to occur so that those powers can be used.
For my part, I find the people who demand emergency government powers to be the hidebound reactionaries, but YMMV.
June 13, 2010, 10:49 pmThe Right to Privacy: its stupid origin « Entitled to an Opinion says:
[...] stupid origin Posted by teageegeepea under Uncategorized Leave a Comment Stewart Baker gives the history. I don’t share his view of the “threats” we face, or care for his portrayal of [...]
June 13, 2010, 10:58 pmNick056 says:
Jon Franzen has an excellent and fairly short essay called “Imperial Bedroom” that reacts against privacy activists and proposes that the private sphere is intruding, in an unseemly way, into public spaces.
But I’m not sure if the people here would like the essay, because it has a point to make, but it’s author doesn’t seem to have anything to prove. It’s the precise opposite attitude of Baker’s excerpt.
June 13, 2010, 11:18 pmDilan Esper says:
The idea that privacy rights apply against other private people — and not just the government — is a threat to the First Amendment.
Translation:
“The idea that privacy rights apply against Hans Bader’s corporate clients who pay his salary and pay him to post material on the internet– and not just the government which might bother the rich executives of those corporations for financial information– is a threat to the powerful interests who employ me.”
June 13, 2010, 11:30 pmJ.T. Wenting says:
So you admit to being a hack and a threat to peoples’ privacy?
Sounds like you’re perfect for atorney general…
Well said.
A lot of US businesses are suffering, especially in the tourist industry, as foreigners are now scared of going to the US for fear of being apprehended for looking funny and possibly held without trial or legal protection for possibly days or weeks (which the TSA has a right to do, either officially granted or granted by themselves).
June 14, 2010, 1:52 amWhether this happens more than occasionally or not, the idea that it’s happening is enough to deter people from visiting your shores.
Chris Travers says:
One thing I agree with David Thompson about is the idea that the future won’t support a binary idea of public vs private. I would go further in arguing that I think it has substantial ramifications on future developments on 4th Amendment jurisprudence. If we are supremely lucky any sort of dragnet surveillance of independently public facts will eventually be ruled Unconstitutional.
The fundamental problem is that we are moving towards a point where “show me the man and I’ll find you the crime” becomes a useful way of getting rid of anyone the government considers dangerous in any way. Overly vague laws and an erosion of personal privacy are both elements of this, but so is the increasing spread of federal power. You seem to be supporting two of the three pillars of this problem.
June 14, 2010, 2:23 amChris Travers says:
There are other things the government can do productively, such as providing grants for industry groups to put together security standards for critical areas (as an example, see the success of the PCI-DSS standards— nowadays most credit card number compromises are either direct targets of individuals or folks not implementing standards they are contractually required to meet). The government could also send out NSA network security gurus to act as advisors to such industry groups. These are typically competent enough groups, however, that NSA help would not be uncritically accepted (meaning no silly games could be played that way, but that the help in reviewing and suggesting enhancements might be productive via the many-eyes approach).
I’m not saying the government should keep away from the problem. I am saying that government control is the wrong answer to these problems.
June 14, 2010, 2:32 amChris Travers says:
I don’t think it should be controversial that the idea of an affirmative right to privacy against actions by private individuals is in tension with the first amendment. The extent to which it is a threat is perhaps something we can debate, but that it exists in tension to the first amendment seems entirely obvious in that it creates an area of off-limits speech that can have a chilling effect.
It’s a tension we will have to navigate, however, and my guess is that some compromises will happen on both sides.
June 14, 2010, 4:01 amChris Travers says:
One more area to take issue with:
I’m sure the progressives on this forum will disagree with me but I think it’s worth noting that anything which is a reactionary defence of the status quo provides a stabilizing and usually positive impact. I’d further note that humans tend to have concepts of personal space and like to keep most people out of that personal space. Where these lines change we get very uncomfortable. However an end to privacy as a whole is something which is unprecedented in our history and would almost certainly be worse, long term, than anything the lack of privacy would be intended to solve.
The problem, as you do point out, is that technology has moved on to erase what are essentially lines regarding privacy, and hence old systems will, in the near future, no longer be able to help protect us from arbitrary and capricious enforcement of laws against the unpopular. I think the solution is to recognize this and realize that in the future, it may no longer be possible to draw strong lines between public and private, and hence privacy will need to be extended to some extent into public space. After all, the “4th Amendment protects persons, not places” (from Katz v. United States).
Some here (I think generally the progressives here like you, Dilan Esper, David Schwartz, and Kamal) seem to revel in the future of life without privacy. Others, like myself, worry that the erosion to privacy has historically always been associated with tyrants such as Stalin or Saddam. I’d like to see an alternative proposed by you on this matter. But instead I don’t see any attempt to even address this concern. There’s a reason why I keep quoting Stalinist sources as to where this is leading (“show me the man and I’ll find you the crime”): that’s necessarily where this is headed. If you disagree, please prove me wrong.
June 14, 2010, 5:00 amSC says:
This is probabely true for much of US history, since the 17th century, for the middle and upper classes, but not before. The progressive innovation was to extend this privacy to the urban working and poorer folk. Eurpopean society generally did not historically provide privacy, unless it could be bought.
June 14, 2010, 9:25 amtroll_dc2 says:
Please develop the last part of the above sentence further. For example, would one have a right of privacy for items on facebook that are available to the public? Would your principle cover camera/computers that allow the police to drive around and note all parked care with unpaid parking tickets? etc.
June 14, 2010, 9:26 amAultimer says:
National security bed-wetters are insufferable too. Brandeis, and some of your chickens little, understand that law follows popular opinion in a democracy.
As our culture becomes comfortable with non-governmental intrusion on private life, the government will press to expand it’s ability to invade. With every erosion by the government, serious abuses will follow, as they have since Brandeis’ time.
Bed-wetters and the “Barb”s will accept the intrusion, as long as the government says that it’s looking for terrorists or protecting the children.
June 14, 2010, 10:22 amCJColucci says:
I guess you had to be there.
As someone once said, the past is another country.
June 14, 2010, 10:32 amBrandeis on privacy says:
[...] The most overrated law review article in history? Or an instance of useful legal doctrine developed from imperfect origins? [Stewart Baker, Volokh] [...]
June 14, 2010, 10:42 amJohn L says:
It is hard to enforce decent conduct through the legal system, but that doesn’t mean we don’t need an idea of what is decent conduct. It is also quite sensible when a new technology comes along that radically upsets social arrangements to want to take a beat and figure out if that is really a good thing. The fact someone is reacting doesn’t make them a reactionary. Throwing around terms like Luddism is reactionary.
June 14, 2010, 11:17 amDigital Society » Blog Archive » Firehose #10 says:
[...] Stewart Baker, author of Skating on Stilts: Why We Aren’t Stopping Tomorrow’s Terrorism); Louis Brandeis: Wuss or Snob? (June 13)(also Baker – an amusing look at the seminal legal article on the right to privacy, [...]
June 14, 2010, 1:40 pmDilan Esper says:
I don’t think it should be controversial that the idea of an affirmative right to privacy against actions by private individuals is in tension with the first amendment.
I quite agree with this. I just don’t think Hans has any credibility on the issue.
June 14, 2010, 3:23 pmadvisory opinion says:
Pointing out that our ideas about anonymity and privacy through obscurity may seem anachronistic in 20 years is “ad hominem”?
That “[i]n twenty years, Brandeis’s objection to photography and newspapers isn’t really going to look different from our objection to the loss of anonymity and the spread of data about ourselves” was the point I take him to be making. There’s a kernel of insight there, even for uncharitable readers. Try extracting it.
June 14, 2010, 3:23 pmTDR says:
Ya…I’m going to have to go with the majority (of commenters) on this one. Having read ONLY this blog post, I’m not going to assume I know Mr. Baker’s argument in full. I think I agree with the general idea that privacy advocacy tends toward Ludditism (literally) if it perceives every new innovation with fear.
That said, to use Brandeis as a means of focusing the discussion only on the dissemination aspect of technology, it ignores the aspect of aggregation, collection, storage and analysis. So I don’t see why I should just say, oh, who cares if my pics are on Facebook or Flickr when the real issue is: what entities are being given the legal authority to collect this? To combine it with other personal information? To use my credit score to judge me worthy of holding a job? To use data mining for DoD recruitment databases? To impose opt-out, rather than opt-in, requirements for students in schools? To use Fusion Centers to pull together all of this “boring” data?
June 14, 2010, 3:30 pmptt says:
Wuss? Snob? Prescient?
June 14, 2010, 4:26 pmHeadlines says:
[...] Brandeis: Wuss or Snob?”–headline, Volokh.com, [...]
June 22, 2010, 1:51 amChana Mallon says:
Hello, thanks for sharing this pretty post, carry on, it’s a pleasure to read you
June 29, 2010, 11:55 amHowToVanish says:
It’s about choice.
The choice to manage risks to privacy.
Disclosing private facts to a friend over dinner risks disclosure by that friend. Disclosing private facts to a friend on the set of a reality show is much riskier.
Celebrities have chosen to manage a high degree of risk. Some socialites choose to Twitter their life away. Others choose not to. We all choose a degree of risk by our actions and overall the reward matches the risk. Mr. Warren misjudged the risk.
The real problem comes when there is no individual choice. Governments prevent or limit choice when it comes to things like encryption, travel and banking. Thus we are forced to engage in riskier behavior and we suffer the consequences.
Maintaining privacy requires affirmative effort, especially now that there are more risks to privacy. But I think that we need the freedom to choose the risks.
July 6, 2010, 1:53 pm