Nathan Wessler and Harold Gurewitz at the U.S. Supreme Court in front of a portrait of Louis Brandeis
Nathan Wessler and Harold Gurewitz at the U.S. Supreme Court in front of a portrait of Louis Brandeis

Guest Column: Justice Brandeis And A Right Of Privacy In A Digital Age

The U.S. Supreme Court capped its last term with a landmark digital privacy decision in a case starting out in Detroit: Carpenter v. United States.

Chief Justice Roberts’ June 22, 2018, majority opinion in Carpenter is about the kind of digital location data automatically created every time our cell phones send or receive messages. In Carpenter, the data was obtained by government investigators without a search warrant and used by prosecutors at Carpenter’s trial to convict him — ironically enough — of robbing cell phone stores by placing him at the scenes of the crimes.

Why should you care? The Carpenter opinion is immensely important for at least two related reasons. First, it puts a real legal limit on government access to the personal details of our lives remotely stored by cell carriers in a digital format. Historical cell phone location data is kept by our cell carriers for up to five years. They are the makings of virtual maps that can lay out every place we travel with our cell phones, 24/7, 365 days a year. When assembled, they indiscriminately reveal both the mundane and the confidential parts of our lives, like trips to work or a grocer or visits to doctors, therapists or perhaps even to a drug dealer or a bookie. What Justice Roberts’ opinion says is that we have a constitutionally protected privacy interest in these kinds of long-term historical records even though they are made and kept in the cloud; and the government must persuade a judge it has probable cause to believe they are evidence of a crime in order to get them with a search warrant.

Nathan Wessler and Harold Gurewitz at the U.S. Supreme Court in front of a portrait of Louis Brandeis

Nathan Wessler and Harold Gurewitz at the
U.S. Supreme Court in front of a portrait of
Louis Brandeis

Second, the Carpenter opinion is important because it lays the groundwork for application of this right of privacy to the ballooning volume of very personal data generated by all the digital devices we have come to rely on in our lives without blinking an eye — and all those yet to come.

For example, we now live surrounded by devices that record and transmit to some remote place minute details from our homes like interior temperatures or the absence of food in a refrigerator or even records of our medical or fertility conditions. Our personal relationships are culled from social media and stored by some mega-server. And we may be subject to surreptitious surveillance when we leave home by license plate scanners or facial recognition devices and iris scanners at airports.

Because Carpenter lays the ground work for privacy protection in a digital age, law professors opined in the New York Times shortly after the Carpenter opinion was released that the high court handed down “what may be the most important privacy case of the digital era.”

Even though a right of privacy is not specifically spelled out in our Constitution, it has grown from strong roots in our legal tradition. Justice Roberts’ opinion in Carpenter builds on the visionary work of revered legal scholar Louis Brandeis more than a century earlier.

Brandeis, then a practicing lawyer, wrote in his seminal 1890 Harvard Law Review article on privacy, “The Right to Privacy,” that as a consequence of “the intensity and complexity of life, attendant upon advancing civilization,” a right of privacy should protect individuals “from invasion either by too enterprising press, the photographer, or the possessor of any other modern device for recording or reproducing scenes or sounds.”

Brandeis’ concern then was print media publishing personal photos and tabloid papers’ gossip columns about the personal lives of East Coast “high society.” About 30 years later, then as an associate justice on the U.S. Supreme Court, Brandeis wrote in Olmstead v. United States, in a dissenting Supreme Court opinion cited in Carpenter by Justice Roberts, about the need for privacy protection from the mounting threat of warrantless telephone eavesdropping.

Brandeis’ vision in 1928 foreshadows present-day legal scholars’ cries for privacy protections in the face of the volumes of records about every detail of our lives never imaginable at the time he wrote his Olmstead opinion.

The defendant in Olmstead was convicted of large-scale bootlegging. In support of the government’s case against Olmstead, prosecutors used voluminous transcribed conversations overheard by agents using rudimentary techniques to splice into Olmstead’s telephone wires connecting to his house. The majority of the court had no problem with the evidence, but Justice Brandeis dissented. He eloquently wrote:

“The makers of our Constitution sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the government, the right to be let alone — the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment.”

Four decades later, in Katz v. United States, a 1967 landmark privacy decision, the court squarely adopted what Brandeis said in his Olmstead dissent, that the Constitution fully protects an individual’s reasonable expectation of privacy. The government used a secret listening and recording device planted on the outside of a telephone booth to listen to and record Charles Katz’s gambling conversations.

Ultimately, however, the Carpenter opinion is important because it represents the fundamental principle that makes our legal system work: that “we extend these [constitutional] safeguards to criminal defendants not because we sympathize with what they have done, but because in upholding their rights, we protect our own,” Hon. Damon Keith, Washington Post, Nov. 10, 1977.

Harold Gurewitz Special To The Jewish News

Harold Gurewitz
Special To The Jewish News

Harold Gurewitz represented Timothy Carpenter in the trial court and on appeal in the U.S. Court of Appeals for the Sixth Circuit in Cincinnati and in the U.S. Supreme Court with Nathan Wessler, staff attorney with the ACLU Speech, Privacy and Technology Project.

Leave a Reply

This site uses Akismet to reduce spam. Learn how your comment data is processed.

Support the Detroit Jewish News Foundation

Support the educational mission of the independent, nonprofit Detroit Jewish News Foundation.

%d bloggers like this: