As we learn more about the National Security Agency’s secret surveillance programs and leaker Edward Snowden, The Takeaway is looking at freedom in America, and freedom’s relationship to privacy.
In a recent article for The New Yorker, staff writer and professor of American history at Harvard University Jill Lepore explores the relationship between privacy, government transparency and freedom in U.S. history. She writes that, by the time Thomas Jefferson wrote the Declaration of Independence, “The mystery of state, in which a king [was] crowned by the hand of an invisible God…yielded to a democracy, in which the rulers are elected and the secrets of state are made public.”
In the nineteenth century, the rise of domesticity, coupled with the emergence of the middle class in a non-agrarian economy, privacy became, in Lepore’s words, a “fetish.” In 1890, Massachusetts attorney (and future Supreme Court justice) Louis Brandeis, along with his law partner Samuel Warren, advocated for the codification of this sentiment in a Harvard Law Review article titled, “The Right to Privacy.” Lepore writes that, according to Warren and Brandeis, “the violation of the right to privacy constitutes a kind of wound — a puncturing of the soul.”
As a justice, Brandeis also waned about the future of government surveillance. In the 1928 case Olmstead v. United States, in which a majority found that evidence discovered through wiretapping admissible in court, Brandeis dissented, writing, “The progress of science in furnishing the government with the means of espionage is not likely to stop with wiretapping.”
Brandeis continued, in an eerie prediction of today’s NSA scandal. “Ways may some day be developed by which the government, without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose the most intimate occurrences of the home.”