Justice Brandeis and privacy protection through usage restriction

The original appearance of this entry was in Danny Weitzner - Open Internet Policy

For a couple of years, colleagues of mine and I have been writing about the need to protect privacy through rules and laws restricting how information is used, not just who can access the personal information. So, I was very happy to discover that a famous early exposition of privacy rights in United States law (Olmstead v. United States (1928)), by the most famous judicial advocate of privacy rights, Justice Louis Brandeis, expressed a clear sentiment in favor of protecting privacy based on how information is used, not just whether one is entitled to have access to it or not. In the course of explaining why earlier Supreme Court legal precedents should be understood to make wiretapping illegal, Brandeis wrote

Unjustified search and seizure violates the Fourth Amendment, whatever the character of the paper; [n4] whether the paper when taken by the federal officers was in the home, [n5] in an office, [n6] or elsewhere; [n7] whether the taking was effected by force, [n8] by [p478] fraud, [n9] or in the orderly process of a court’s procedure. [n10] From these decisions, it follows necessarily that the Amendment is violated by the officer’s reading the paper without a physical seizure, without his even touching it, and that use, in any criminal proceeding, of the contents of the paper so examined — as where they are testified to by a federal officer who thus saw the document, or where, through knowledge so obtained, a copy has been procured elsewhere [n11] — any such use constitutes a violation of the Fifth Amendment.

That is to say, even if the officer was in rightful possession of the private information, it still should be understood as a violation of privacy it the police use the information against the individual. This is privacy as a set of usage rules.

Brandeis was trying to argue that wiretapping should be considered illegal under the Courts existing precedents but the majority of the Court opposed him and asserted that wiretapping was constitutional because it did not involve any physical trespass into the private property of the telephone user. So, Brandeis lost the argument in this early case and wiretapping remained constitutional (though not always legal) in the US for another 40 years. Eventually, though, the Court came around to Brandeis’ view that how the government got access to the telephone call matters less than the fact that people have, and are entitled to have, an expectation that their calls are private; that government would become too powerful it allowed to use the contents of our private communications without a warrant.