Joel Cohen
Joel Cohen

Privacy, pandemic, and Brandeis

The incomparable Louis Brandeis (with his co-author Samuel Warren), in their seminal 1890 article in the Harvard Law Review, entitled “The Right To Privacy,” characterized it as the “right to be let alone” and extolled it as “the right most valued by all civilized men.”

Isn’t it so? More than anything, as sentient, even self-absorbed human beings, we want to share with others only that which we have voluntarily chosen to share with them alone. And, sometimes, perhaps too often, we’re saddened, in retrospect, that we shared too much. On those occasions, though, we alone are to blame when we come to regret that earlier “sharing.”

Brandeis, though, wasn’t really addressing our own breaches: those moments when we foolishly shared things that upon reflection we later consider confidential to us. He wasn’t bemoaning, for example, a woman in love with a faraway man who sends him her nude photo to keep the flame alive, but is later betrayed when he reveals it to others. Nor a man who privately discloses his earlier bout with suicidal ideation to someone who recklessly finds useful its retelling to others. Nor, finally, the mother of a newborn baby who tells a supposed confidante that her husband, who would rather not know, is not really the baby’s father — only to have the “confidante” betray her.

These are horrifically invasive privacy violations that certainly lie at the outer contours of Brandeis’s formulation of an amorphous “right to be let alone.” Or perhaps, to utilize the language of Justice Douglas in Griswold v. Connecticut, as being within the penumbra of that right. Still, there’s nothing that society can or should do about them. The most effective means to maintain the secrecy is to simply keep the secret to oneself. One doesn’t require Brandeis for that elementary wisdom!

What, though, if I come to learn that someone I know, or even a friend, has a contagious disease but nonetheless seems unwilling to address it with potential victims? Isn’t there a moral duty on my part to disclose it – a duty superseding the right to be let alone articulated by Brandeis as a “legal” right, and by Greta Garbo as a protocol for how she wanted to live her life?

For example, assume that someone just down the hall suffers from a dread disease – let’s call it COVID-19. Of course, I possess the ability to do something, even if sworn to secrecy having learned the fact directly from him. More important, though, don’t I have the right — even the duty — to disclose the transmissibility potential to others who have been or likely will be exposed? Yes, indeed, my acquaintance or friend who feels victimized by my intention to “betray” him would maintain the defamation remedy, even if I acted in good faith, if my information turns out to be false – e.g., I somehow misheard or misunderstood his physician’s voicemail or email. But that potential lawsuit is not about “privacy.”

Although I unbendingly admire the Justice I wouldn’t be troubled at all even if Brandeis himself found my way of thinking offensive. For me at least, one’s right to be let alone requires restricting outer boundaries. It was, after all, Brandeis’s great colleague, Oliver Wendell Holmes, Jr. — among others to whom the comment is attributed — who said in another context that “My right to swing my fist ends where the other man’s nose begins.”

The individual who tests positive for COVID — effectively indicating that he’s a potential carrier who nonetheless cavalierly walks about publicly — does, indeed, swing his fists in wild disregard for his neighbor’s safety. Without even the need to contact an ethics hotline, don’t I possess an affirmative obligation to “tell” the world around him if he recklessly declines or refuses to go into lockdown on his own? Put aside Garbo, would Brandeis take offense by how I would intend to deal with this unscrupulous individual’s right to be let alone whether or not I learned about his infected status directly from him?

Unquestionably, society typically hurts itself when it creates onerous regimes in times of societal turmoil. The Red Scare of the 1940’s and 1950’s encouraged a system of informants, secret hearings and blacklisting.  And later, the Congress enacted the privacy-depriving Patriot Act in the aftermath of 9/11. It very well may be that creating a “culture” (lacking a better word),  that, as suggested here, effectively encourages people to become informers to potentially protect others may likewise have longstanding negative effects on society. We ideally do want people to maintain their privacy despite a “reality” culture that rewards unprecedented openness. Try to imagine Garbo sitting down with Kim Kardashian for a tea!

Brandeis wasn’t really talking about what is currently at issue here, and I’m not really addressing legal “rights” or “duties.” Rather, I’m talking about how mankind should address his neighbor’s freedom from unauthorized intrusion when the safety of others is at stake.

Near the conclusion of his pivotal article, Brandeis said that “[t]he common law has always recognized that a man’s home is his castle, impregnable, often, even to his own officers engaged in the execution of its command. Shall the courts thus close the front entrance to constituted authority, and open wide the back door to idle or prurient curiosity?”

The government — Brandeis is surely correct — doesn’t have a right to barge into my home on a mere suspicion, or even with determinative proof that I test positive for COVID. My  right to privacy against governmental intrusion is inviolable. Still, if someone “leaves his back door open” either to the idle or prurient-seeking gossipers, or indeed, to would-be informers who learn that he presents a clear and present danger to the health and safety of others, I must part company with Brandeis if he would rather want me to stand down.

I would want even gossipers to be able to “rat” on my uncaringly cavalier neighbor. And I likewise should be willing to have them rat on me too if I’m an offender. We live in a time when world health is literally at risk. In certain sui generis circumstances such as these, an overarching convention of privacy that one might consider in a Socratic dialogue in academia, simply needs to take a back seat.

Lest it go unsaid, should it make a difference if there are rules about when a person must self-report? Say, for example, your acquaintance has broken workplace or residential rules in not quarantining or disclosing having been exposed to COVID. If so, should there be a strong argument that he has outright forfeited his privacy? And, what if there is no rule because everyone has theoretically agreed to operate on the “honor system”? If there was such a violation, why shouldn’t I be free to actually publish the fact of his misconduct in keeping it to himself, even though Brandeis actually seemed most troubled by the “publication” aspect of privacy violations? We’re awash in hard times resulting from an international health crisis. It’s truly a new day and we need to aggressively react to it.

It is finally worth noting that some religious observers offer a daily prayer saying that “for the informers let there be no hope.”  Perhaps, though, given the crisis we’re now experiencing, which is boldly enabled by cavalierly reckless transmitters of the disease, “informing” in order to help protect everyone from a potential dire medical condition is exactly what the doctor ordered.

So what would Brandeis say?

About the Author
Joel Cohen is a white-collar criminal defense lawyer at Stroock in New York and previously a prosecutor. He speaks and writes on law, ethics and policy (NY Law Journal, The Hill and Law & Crime). He teaches a course on "How Judges Decide" at Fordham Law School and Cardozo Law School. He has published “Truth Be Veiled,” “Blindfolds Off: Judges on How They Decide” and his latest book, "I Swear: The Meaning of an Oath," as well as works of Biblical fiction including “Moses: A Memoir.” The opinions expressed in this article are not necessarily those of the Stroock firm or its lawyers.
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