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Brandeis, Sex Tapes, and TMZ: The Right to Privacy

January 25, 2014

If you’ve studied US history you’ve likely heard of Justice Brandeis, and this is the problem. We rarely think of historical figures as contemporaries. Your high school History teacher probably didn’t teach you that one of Brandeis’s most significant pieces of legal analysis was (in effect) all about TMZ, sex tapes, and the right to privacy. Well, almost. It was about the 1890s equivalent of TMZ following the latest starlets to get all the details. Bear with me.

Without turning this post into a history lesson, let’s quickly summarize who Justice Louis Brandeis was. Brandeis was a Supreme Court justice who wrote a dissenting opinion on privacy rights that influenced the court for decades. He also rendered opinions supporting free speech rights at a time when dissent was very unpopular. Many credit him with establishing the basis for the modern right to privacy.

If you get a chance, read some of his opinions, because it will do two things for you. First, it’ll inspire you – the guy could write. Second, it’ll make you wish he were still around. If he was, he’d be pissed. He’d have one look at the NSA surveillance debacle and he’s say, “I told you this was going to happen 125 years ago.”

New Cameras, Salacious Scandals

At 34, this young practicing lawyer wrote a brief in the Harvard Law Review entitled “The Right to Privacy.” In it, he defines the concept of privacy as the “right to be left alone.” This was 1890, which, if you can remember, was a time of rapid technological change. The payphone was invented in 1889, the teleautograph, the ballpoint pen, and the motor in 1888, the record and photographic film just five years earlier. I thought the 1990s were amazing with the dawn of the Web, but the 1880s trump anything we can imagine – motors, pens, cameras, and telephones.

My emphasis on technology is important, because we all know what new technology is for, right? The first use of the technology always has something to do with our “prurient tastes.” This is as true in 2014 as it was in 1890. Human nature hasn’t changed. Here’s a quote from that famous legal brief:

The press is overstepping in every direction the obvious bounds of propriety and of decency…. To satisfy a prurient taste the details of sexual relations are spread broadcast in the columns of the daily papers. To occupy the indolent, column upon column is filled with idle gossip, which can only be procured by intrusion upon the domestic circle.

1890s: Cheaper Cameras, Birth of the Paparazzi, Definition of Right to Privacy

One of the motivating cases for the brief was of a Broadway actress who, while performing in risqué “tights” was “photographed surreptitiously and without her consent.” Technology and the newspaper industry was moving much faster than the law.

Brandeis’s concerns at the time were the same as our concerns today: technology in the wrong hands is a recipe for privacy intrusion. Rupert Murdoch’s News of the World has nothing on the “yellow journals” of that time. Society weddings were broken into, pictures were taken, affairs were documented, and communications were intercepted. Salacious love letters were inadvertently forwarded to the wrong addresses and technology was employed to uncover the secrets of celebrities.

The news that sold in 1890 was the same as the news that sells today – pictures of Bieber getting arraigned in Florida.

Defining Our Modern Right to Privacy

So, Brandeis, this heroic justice of the Supreme Court staring out from history books in every classroom – what was he worried about in 1890? He was concerned that newspapers were stealing people’s nineteenth century equivalent of sex tapes using an array of new technologies to invade privacy. That’s the motivation behind Brandeis and Warren laying out the legal framework for our “Right to Privacy.”

Here’s this lawyer practicing in Boston. One has to imagine that he didn’t just jump up and take an offhand interest in the subject. Maybe his client list included a few Newport-mansioned Gatsbys who happened to mention something salacious on one of those new pay phones? Maybe one of his clients learned about the power of photography in a way he regretted?

If you look at what has happened to our society in the intervening years, it’s clear that Brandeis lost this battle. Every time you run through a supermarket checkout line you see the gossip rags touting the latest salacious email that happened to be intercepted by Brangelina’s disaffected housekeeper. Then as now, we’re still using technology with this blind trust that no one will intercept it.

What Brandeis Would Tell Today’s Celebrities

I’m certain that if Brandeis were still around he’d be telling people to make heavy use of encryption technology. Virtru should be part of the celebrity arsenal against intrusion. If I were famous, I’d be encrypting just about everything I did because, as a celebrity, I would value my “right to be left alone.”