Sunday, June 9, 2013

The Right to be Left Alone

Some one hundred and twenty three years ago Warren and Brandeis published a paper entitled, The Right to Privacy. It opens as follows: 

That the individual shall have full protection in person and in property is a principle as old as the common law; but it has been found necessary from time to time to define anew the exact nature and extent of such protection. Political, social, and economic changes entail the recognition of new rights, and the common law, in its eternal youth, grows to meet the demands of society. Thus, in very early times, the law gave a remedy only for physical interference with life and property, for trespasses vi et armis. 

Then the "right to life" served only to protect the subject from battery in its various forms; liberty meant freedom from actual restraint; and the right to property secured to the individual his lands and his cattle. Later, there came a recognition of man's spiritual nature, of his feelings and his intellect. 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; and the term "property" has grown to comprise every form of possession-- intangible, as well as tangible.

Thus in the beginning mankind felt they had a right to not have physical harm inflicted upon them. In today's world we kind of take that to be the case except perhaps with the exception of the TSA and their deadly X ray machines, but I lay that aside in this piece. They continue:
     Thus, with the recognition of the legal value of sensations, the protection against actual bodily injury was extended to prohibit mere attempts to do such injury; that is, the putting another in fear of such injury. From the action of battery grew that of assault Much later there came a qualified protection of the individual against offensive noises and odors, against dust and smoke, and excessive vibration. The law of nuisance was developed. So regard for human emotions soon extended the scope of personal immunity beyond the body of the individual. 

His reputation, the standing among his fellow men, was considered and the law of slander and libel arose Man's family relations became a part of the legal conception of his life, and the alienation of a wife's affections was held remediable.  Occasionally the law halted--as in its refusal to recognize the intrusion by seduction upon the honor of the family. But even here the demands of society were met. A mean fiction, the action per quod servitium amisit, was resorted to, and by allowing damages for injury to the parents' feelings, an adequate remedy was ordinarily afforded. 

Similar to the expansion of the right to life was the growth of the legal conception of property. From corporeal property arose the incorporeal rights issuing out of it; and then there opened the wide realm of intangible property, in the products and processes of the mind, as works of literature and art, good-will, trade secrets, and trade secrets.

Thus we see a natural progression protecting the person, a natural progression of civil law which Brandeis believe was building on the Constitution, not conflicting with it. Now or on of the most powerful parts of the paper:

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 what Judge Cooley calls the right "to be let alone." 

 Instantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life; and numerous mechanical devices threaten to make good the prediction that "what is whispered in the closet shall be proclaimed from the house-tops." For years there has been a feeling that the law must afford some remedy for the unauthorized circulation of portraits of private persons; and the evil of the invasion of privacy by the newspapers, long keenly felt, has been but recently discussed by an able writer. 

The alleged facts of a somewhat notorious case brought before an inferior tribunal in New York a few months ago, directly involved the consideration of the right of circulating portraits; and the question whether our law will recognize and protect the right to privacy in this and in other respects must soon come before our courts for consideration.

The right to be let alone is a fundamental right, but the current administration in the act of "protecting" us has taken away that right. From mandatory health care, to mandated tracking of all communications, to full body searches at any and all spots, to tracking of reading materials, to gathering information from employers and banks. Our right to be let alone has been dismembered beyond all repair. What would Brandeis think?