Warren & Brandeis – The Right to Curate an Identity

By Robert Grace | December 4, 2017

Warren & Brandeis: The Right to Curate an Identity

Mrs Warren’s Profession

  • No, not THAT Mrs Warren.
  • Our Mrs Warren was a hostess and the problem started with what Mr Warren perceived as unwelcome and intrusive reportage on his wife’s “at Homes” and his daughter’s wedding.
  • The sensational and salacious coverage outraged Warren and he consulted Brandeis on the matter of privacy and the law.
  • The resulting article is one of the most cited legal articles ever.
  • They scolded journalists, “particularly photojournalists, for prying into people’s private lives in search of tawdry and alluring “news,” and then successfully pleaded for the law to recognize a right to privacy and to impose liability in tort for these and other types of invasions of privacy”. (Nelson, 2011)
  • Our good name, our reputation, and our character are ours by inalienable right, and can be defended against mis-use, or mis-quotation, or even publication without our explicit, or implicit permission.
  • Privacy has very little to do with either slander or libel.

Boston Brahmins and Gossip

  • Warren and Brandeis didn’t like gossip.
  • Even gossip apparently harmless, when widely and persistently circulated, is potent for evil. (Warren & Brandeis, 1890)
  • It belittles by inverting the relative importance of things, thus dwarfing the thoughts and aspirations of a people. 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. (Warren & Brandeis, 1890) Their major concern was
  • To consider whether the existing law affords a principle which can properly be invoked to protect the privacy of the individual; and, if it does, what the nature and extent of such protection is. (Warren & Brandeis, 1890) Brandeis – Prescient and Visionary
  • What is fascinating is how Brandeis foresaw the moral and legal dilemmas brought into the debate by advances in technology.
  • “Recent inventions and business methods call attention to the next step which must be taken for the protection of the person, and for securing to the individual … the right ‘to be let alone’ … Numerous mechanical devices threaten to make good the prediction that ‘what is whispered in the closet shall be proclaimed from the house-tops.’” (Warren & Brandeis, 1890)
  • Theirs was the first major article to advocate for a legal right to privacy. Brandeis and Wiretapping
  • By 1928, advances in the telephone and the invention of wiretapping, led Brandeis, by then a Supreme Court Justice to argue for a constitutional right to privacy in a dissenting opinion in Olmstead v. United States.
  • Today, technology and privacy are at another crossroads. When Edward Snowden revealed that security agencies conduct dragnet surveillance of phone and Internet records of millions of Americans, he reignited the debate about a citizen’s right to privacy. (Burrows, 2013)
  • “First as an attorney, then as a jurist, Brandeis was the single most import figure in the history of the concept of privacy,” says Steve Whitfield, the Max Richter Professor of American Civilization. (Burrows, 2103)
  • Brandeis became the first justice to interpret a constitutional right to privacy in the Fourth Amendment, Whitfield says. He was also the first jurist to recognize the threat technology posed to citizens. (Burrows, 2103)

Warren and Brandeis and the Royal Angle

  • Warren and Brandeis analyse cases where they feel the courts have protected privacy by using other parts of the law, such as the law of defamation, property, or contract.
  • Their argument is that decisions would make more sense if it directly invoked a right to privacy.
  • One of the easier ones to understand is that of Prince Albert vs. Strange (1849) where the Prince Consort, on his own, and Queen Victoria’s behalf, sued for breach of trust when he was made aware of a planned exhibition of drawings made by the royal couple and presented by them to various people
  • Prince Albert sued for a return of the drawings and the destruction of the catalogue and his plea was granted and upheld on appeal
  • “The possession of the etching by the defendant had “its foundation in a breach of trust, confidence, or contract,” and that upon such ground also the plaintiff’s title to the injunction was fully sustained.” (Warren, Brandeis 1890)

Case study 1 – Letter

  • Suppose A sends a letter to B containing private information about A and that B publishes the information in the letter.
  • Warren and Brandeis think that B would have violated A’s right to privacy.
  • The violation cannot consist in a violation of A’s property rights because the letter is no longer A’s property: A sent it to B. It can’t be that B did anything wrong in acquiring the information either: again, A sent the letter to B.
  • Nor can the violation consist in the violation of a contract between A and B: B does not consent to anything by opening a letter (they say).
  • As Warren and Brandeis see it, A’s right is the right to control publication of the information. That is what they call a right to privacy. (Carneades.pomona.edu, 2015) Case study 2 – Photograph
  • A structurally similar example involves what is now known as “revenge porn”.
  • C gives D a racy photograph of C that D posts on the internet when C and D break up.
  • That strikes many people as a violation of C’s privacy. But it’s not because D didn’t own the picture; it’s because of the information in the picture, namely, what C looks like naked.
  • If you think the right to control the information about what C looks like naked remains in C’s hands, then you are in substantial agreement with Warren and Brandeis. (Carneades.pomona.edu, 2015)

Privacy

Warren and Brandeis (1890) assert that the right to privacy stems from our earliest rights, and shows a clear development over time from - The right to life and liberty (freedom from restraint), which evolved into - The right to own property, and to protect it too. Gradually, the scope of these legal rights broadened, and now the right to life has come to mean - The right to enjoy life, — the right to be let alone - The right to liberty secures the exercise of extensive civil privileges - The term “property” has grown to comprise every form of possession — intangible, as well as tangible.

Plus ça change, plus c’est la même chose

Warren and Brandeis wrote their seminal article in the 1890s and much of what concerned them resonates with us today, indeed the article is worth reading for its prescient, visionary concerns – - “Instantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life” - “Numerous mechanical devices threaten to make good the prediction that ‘what is whispered in the closet shall be proclaimed from the house-tops’” - They “question whether the law will recognize and protect the right to privacy […] must soon come before [our] courts for consideration” - “The desirability [… and] necessity of some such protection” is without doubt (Warren & Brandeis, 1890)

Further reading

The article is available on several sites (note: each contains a different set of typographical errors which is bizarre) - http://groups.csail.mit.edu/mac/classes/6.805/articles/privacy/Privacy_brand_warr2.html - http://www.cs.cornell.edu/~shmat/courses/cs5436/warren-brandeis.pdf

Discussion/analysis available here - http://carneades.pomona.edu/2015-Law/24.WarrenBrandeis.html - https://inpropriapersona.com/the-right-to-privacy-by-warren-and-brandeis/ - http://www.brandeis.edu/now/2013/july/privacy.html