Mad Dog 21/21: Smith And Westin
April 15, 2013 Hesh Wiener
Privacy law in the United States really began in 1890 when Louis Brandeis, number one in his graduating class, writing with Samuel Warren in Harvard Law Review, argued that there was a “right to be left alone.” This alienable right had been poorly articulated until Brandeis and Warren brilliantly expressed what their predecessors had not. In the nearly 125 years since, the value placed on personal privacy has waxed and waned. Gibbous only 50 years ago, it became a mere crescent during the past decade, its visible illumination reduced by an improbable combination of terrorism and social media.
By the time Brandeis was elevated to his ultimate office by Woodrow Wilson, whose administration fought the most difficult and unpleasant Supreme Court nomination battle in history up to that time, his ruling, court record opinions, and published essays had already achieved rare distinction. As much because of his intelligence and wisdom as his viewpoints, the Brandeis appointment struggle was as ugly as today’s conflicts among the warring malefactors and nitwits collectively known as Congress. But the Brandeis story is particularly complicated and confusing, because he was a Republican revered (and confirmed during the appointment process) by progressive Democrats. His fall from Republican grace very likely stemmed more from his battles against corruption than his ideology, but that’s not the way his enemies put it.
Brandeis saw, a century before computers became a part of daily life, that the newspapers and the barons who owned them built wealthy empires by exploiting the public hunger for gossip and spite. He wrote in legal briefs what would much later be explained in a far more accessible fashion by, among other things, the film Citizen Kane. The malice of Murdoch’s media would dismay but not surprise Louis Brandeis.
Brandeis also generally opposed vast disparities between haves and have-nots, reasoning along lines that were not dissimilar to those paths of thought taken by Henry Ford, who paid his workers more than the prevailing industrial wages of his time due to enlightened self-interest. Ford said, correctly, that if he paid his workers better they would buy his cars and by doing so encourage others to buy cars, too. Ford’s car company became a leader because it catered to the middle class, not, like so many other auto makers during his time, the super rich. When the economy took a dive during the 1930s, Ford prevailed and most of the luxury car producers went broke.
Brandeis saw things as a jurist, not an industrialist, observing that the freedom to grow and change provided by prosperity is a necessary condition for a working democracy. “We may have democracy, or we may have wealth concentrated in the hands of the few,” he said, “but we cannot have both.”
A similar sense of justice seems to be the foundation of his views on privacy. His co-author and later law partner Samuel Warren came from a prominent Boston family. Warren’s folk were targets of the American gutter press, which in the years around the turn of the twentieth century resembled today’s supermarket tabloids and Britain’s red top fish wrappers. Brandeis felt this kind of publishing was not a just exercise of freedom of the press but rather a corrosive force that cause a great deal of pain and no social benefit. He was not in favor of censorship, but he was in favor of just enough decency on the part of media (and its public) to recognize that sometimes rights must have boundaries.
More than a generation later another lawyer, Alan Westin, who also went to Harvard Law and wound up teaching law at Columbia, expanded on the concepts espoused by Louis Brandeis and applied them to situations that began cropping up in connection with computing as government and industry began amassing databases during the 1950s and 1960s. Westin died in February at the age of 83, contributing to the debates surrounding the delicate, ever-shifting balance between privacy and surveillance until his failing health overwhelmed his energies. Quite a lot of what he had to say is in a single volume, Privacy and Freedom, first published in 1967 and currently available only at auction level prices.
Just as Brandeis and Warren were able to reach their public by choosing examples of a widely known type, in their case the invasive photos taken by press photographers who would eventually be known as paparazzi, Westin chose as a well-understood example of privacy and its breach the growing use of wiretaps that ballooned beginning in the 1950s. By the time computers had a significant role in the process, a decade or so later, the love affair between investigators, governmental or otherwise, and electronic snooping was hotter than Cyrano and Roxanne.
As he aged Westin observed (and commented on) the biggest change in the privacy debate. Until pretty recently the two sides of privacy arguments were usually those of an individual (or corporate individual) trying to preserve impenetrable regions within the boundaries of a dwelling, a professional practice, an enterprise, a family unit or a private association. On the others side of the issue, the outside trying to get in, were media gawkers, tax collectors, police, industrial spies, anti-terror agents, credit agencies and a whole lot of other snoops. But nowadays people seem to enjoy hanging out their dirty laundry (yellow in front, brown in back) for the world to see. They boast of their glandular impulses as if they involved real love and affection, making exhibits of themselves in words and pictures, videos and songs.
This behavior isn’t just fun. It has real consequences far beyond the personal legacy of goofiness so many people will suffer for their entire lives. By debasing traditional notions of privacy and propriety they make it far too easy for various parties to collect and exploit the facts and fancies in individuals data trails. People may eventually discover they cannot put the data toothpaste back in the tube, and perhaps the next generation will learn from the folly of their data nudist predecessors, but in the meantime societies seem to be suffering from an overdose of googleization, their details digitized and dumped into innumerable reservoirs of big data.
The story of these times, at least during the past four decades, has been published by yet another Harvard graduate and lawyer (but whose law degree is from Georgetown), a former head of the Crimson campus newspaper, Robert Ellis Smith. He has been publishing his newsletter, Privacy Journal, for as long as Westin’s magnum opus has been in print, keeping up with the way America (and sometimes other nations) deals with the tensions between the sanctity of a private individual and the sometimes intrusive requirements of a threatened (or perhaps pretending to be threatened) society. Smith has written a few books and gets around quite a bit as a speaker. He appears to be as confused as the rest of us about whatever it is that seems to compel so many people to shamelessly open their misguided or unguided private lives to public view, scrutiny and, if anyone cared, ridicule.
Eventually, I believe, the law and its wisest minds will find a way to restore the bulwarks that protect and preserve privacy that the young, their brains most likely addled by mobile phone signals, have allowed to seep away. The method, I expect, will be some kind of legal case that shows beyond a doubt how real social and personal harm can flow from the loss of barriers that give us solace, sanctuary, solitude, and individual souls using quite a lot of data including scientific data to build solid arguments. To this very day, that type of legal presentation is called a Brandeis Brief.