Brandeis: The right to be let alone, to have privacy, is the most comprehensive and valued right

An attack on privacy is an an attack on freedom itself.

I have previously posted on the theme of – “From Facebook To FATCA” . My theory has been that FATCA (which is an erosion of freedom) is possible only in a world that does NOT value privacy. The erosion of privacy NECESSARILY LEADS to the erosion of freedom.

An earlier post describing the relationship between FATCA and freedom included:

The argument over FATCA is NOT really about taxes. The argument is over whether individuals should be allowed to have freedom and privacy.

The U.S. government wants to abolish privacy and freedom.

Some countries and individuals want to preserve freedom (at least as long as possible.)

Question: How did the values of “freedom” and “privacy” disintegrate? Why are so many people unconcerned about the the loss of privacy? Makes no mistake about it, “privacy” and “freedom” are linked.

I speculate that the world of social media has paved the way for this. People now think nothing of having their life visible to all on Facebook, Twitter and the rest. If there is no personal privacy, and financial privacy is part of personal privacy, then …

Privacy and freedom are linked in all aspects of life. The links include:  Financial aspects, Spiritual aspects, Family aspects and really ALL aspects.

Financial aspects: In a previous post, it was reported that Charles W. Adams in his book: “For Good And Evil – The Impact of Taxes On The Course Of Civilization”  – describing 27 lessons from the history of taxation included:

11. If liberty is to be defended with success against the dominance of the state, then financial privacy must be preserved. Banking privacy is one the cornerstones of liberty, having its roots in the principle of early English Law that a man’s castle (primarily his treasury) is beyond he surveillance of the king.

Family aspects: No matter what you think of the U.S. Supreme Court decision in Roe v. Wade, Justice Blackmun, in ruling that the Government could not prohibit abortions, Justice Blackmun recognized a constitutional right of privacy.

Few decisions are more personal and intimate, more properly private, or more basic to individual dignity and autonomy, than a woman’s decision – with the guidance of her physician and within the limits specified in Roe – whether to end her pregnancy. A woman’s right to make that choice freely is fundamental…[11]

(Note that some do NOT agree with the idea that the U.S. constitution guarantees any right of privacy.) In a world of FATCA, FBAR, Obama, NSA, etc., the question of whether there is a constitutional right to privacy is a question of profound importance.)

Spiritual aspects: The United States was largely founded by people seeking the freedom to engage in religious activities of their choice. Even today “freedom of religion” is recognized as an important part of American society.

Privacy certainly matters to individuals. Privacy matters to societies. Privacy matters to democracies.

The advent of social media and the erosion of privacy:

More and more of people’s lives have  been subject to scrutiny. In fact, those who value privacy are frequently regarded with suspicion. The erosion of privacy was purported to have been justified by the events of 911. The “Patriot Act” required people to  “give up” more and more of their privacy in exchange for … (what)?

Leading us directly to the Edward Snowden’s revelations about NSA spying

I highly recommend you read Glen Greenwald`s book “No Place To Hide“. Mr. Greenwald was the journalist who was contacted by Ed Snowden. He traveled to Hong Kong to interview him. Mr. Greenwald places the Snowden revelations in the proper context. The most interesting chapter is Chaper 4: “The Harm of Surveillance”. The theme of the chapter is about the rise of the “Surveillance State” and the corresponding loss of privacy. It’s a fascinating description of how the “Surveillance State” (which includes government-motivated “whistleblowers“) both affects and changes the “human condition”.

To repeat: The “surveillance state” changes the human condition. An earlier post on this blog – “The Lives of Others: The True Significance of Bradley Birkenfeld” included:

It’s clear that if approached by the Stasi, one had little choice but to cooperate.

What does this have to do with Bradley Birkenfeld, the IRS and the 104 million payout? Well, at a minimum it means that the IRS will reward, people who report on the activities of others. The proof is that they are willing to pay. They even call them “whistle blowers”. As Sovereign Man points out, this surely will provide incentives to people to spy on each other. What does this mean about the future of American Society? Amazingly, I came across a brilliant analysis which begins as follows:

In 1787, philosopher and economist Jeremy Bentham proposed a new plan for a jail that would allow a very few officials to continuously monitor the inmates. He called his plan the panopticon.

“The essence of it consists, then, in the centrality of the inspector’s situation, combined with the well-known and most effectual contrivances for seeing without being seen,” he wrote in describing his plan. Under the plan, because the inspector — i.e., the jailer — could see without being seen, the inmates could never know whether they were being watched or not. As a result, they had to assume that they were under complete surveillance at all times, with the hoped-for result being that they would modify their behavior accordingly.

I commend the complete article to you.

And now back to Mr. Greenwald …

(For the transcript of a fascinating speech given by Mr. Greenwald on the “Surveillance State” – read this.) A need for “privacy” is part of what it means to be “human”. Therefore, governments that erode “privacy” erode “humanness”.  Mr. Greenwald’s book is  a must read. (In addition, I highly highly recommend you see the movie “CitizenFour” which is a documentary about the Snowden revelations. Incredibly, the makers of “CitizenFour” are now being sued – go figure.)

Mr. Greenwald writes (at the end of Chapter 4):

Forgoing privacy in a quest for absolute safety is as harmful to a healthy psyche and life of an individual as it is to a healthy political culture. For the individual, safety first, means a life of paralysis and fear, never entering a car or airplane, never engaging in an activity that entails risk, never weighing quality of life over quantity, and paying any price to avoid danger.

Fear mongering is a favorite tactic by authorities precisely because fear so persuasively rationalizes an expansion of power and curtailment of rights. Since the beginning of the War On Terror, Americans have frequently been told that they must relinquish their core political rights if they are to have any hope of avoiding catastrophe.

(The very first post on this blog (October 20, 2011) described how the “fear mongering” caused by the “war on terror”, has led to the erosion of freedom.)

Brandeis – “The Right To Privacy” – Privacy and the human condition

In Chapter 4, Mr. Greenwald described an essay written in 1890 by Louis Brandeis (of Supreme Court Justice fame) and Samuel Warren. The essay is titled: “The Right To Privacy“. Think of it. The essay was written in 1890 which was almost 100 years before the “assault” on privacy began in earnest. It was almost 100 years before the “price to participate in the digital age” was the “loss of any expectation of privacy”. Yet, Justice Brandeis was was writing about “privacy” and the importance of privacy in the human condition. In 2014 his 1890 essay was referenced and discussed by Glen Greenwald in “No Place To Hide”.

The Brandeis essay includes:

We must therefore conclude that the rights, so protected, whatever their exact nature, are not rights arising from contract or from special trust, but are rights as against the world ; and, as above stated, the principle which has been applied to protect these rights is in reality not the principle of private property, unless that word be used in an extended and unusual sense. The principle which protects personal writings and any other productions of the intellect of or the emotions, is the right to privacy, and the law has no new principle to formulate when it extends this protection to the personal appearance, sayings, acts, and to personal relation, domestic or otherwise.40

You will find the complete essay (written in 1890) here. Justice Brandeis was identifying and articulating an important interest that is at the heart of the debate today.

An attack on privacy is an attack on freedom itself.

John Adams reminded us that:

Liberty, once lost, is lost forever

Epilogue:

While thinking about this issue, I discovered a bit of interesting (maybe) trivia. The 1967 case of Afroyim v. Rusk is playing a major role in the life of “Americans abroad”. (This is the Supreme Court decision that establishes that Congress cannot simple “strip people of U.S. citizenship” without their consent. I wrote about the possible impact of Afroyim on the treatment of Americans abroad in an earlier post. There is a strong consensus that Americans abroad are being forced to renounce their citizenship. Yet, in Afroyim, Justice Black reminds us that:

Citizenship is no light trifle 268*268 to be jeopardized any moment Congress decides to do so under the name of one of its general or implied grants of power. In some instances, loss of citizenship can mean that a man is left without the protection of citizenship in any country in the world—as a man without a country. Citizenship in this Nation is a part of a co-operative affair. Its citizenry is the country and the country is its citizenry. The very nature of our free government makes it completely incongruous to have a rule of law under which a group of citizens temporarily in office can deprive another group of citizens of their citizenship. We hold that the Fourteenth Amendment was designed to, and does, protect every citizen of this Nation against a congressional forcible destruction of his citizenship, whatever his creed, color, or race. Our holding does no more than to give to this citizen that which is his own, a constitutional right to remain a citizen in a free country unless he voluntarily relinquishes that citizenship.

As of late there there has been some discussion of a legal challenge to  citizenship-based taxation (or at least aspects of it) by using the 14th amendment arguments. I suggest that the above quote from Justice Black’s decision should be a leading part of that challenge.

The argument would be:

1. Maybe citizenship-based taxation is NOT unconstitutional per se; but

2. The rules that U.S. government is imposing (under the guise of citizenship-based taxation) are forcing people to renounce U.S. citizenship and are therefore unconstitutional.

The lawyer representing Afroyim (at least in the early stages was Nanette Dembitz. Nanette Dembitz was a niece of Justice Louis Brandeis.  Interestingly the impact of Justice Brandeis and people like Nanette Dembitz – who recognized the importance of the individual – carry on today.

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3 thoughts on “Brandeis: The right to be let alone, to have privacy, is the most comprehensive and valued right

  1. badger

    I am reading the Greenwald book, and heartily second your recommendation that others should (indeed, MUST) do as well. It is critical that people understand the assault on privacy. FATCA is an aspect of this larger erosion of our human rights and though it offends in several ways, the assault on our privacy is one. I will read the Brandeis essay, and thank you for bringing it to our attention. Your post is very important regarding the implications of the right to privacy – and denial of same by the US and the Five Eyes. Here is another event in the battle against the total surveillance state – by countries who purport to be beacons of democracy:

    See this story from the UK;
    ‘UK mass surveillance laws do not breach human rights, tribunal rules
    Rights groups brought case against GCHQ after Snowden revelations on extent of electronic surveillance in UK and US’

    Owen Bowcott, legal affairs correspondent
    The Guardian, Friday 5 December 2014

    “Human rights groups that brought the challenge said they would appeal to the European court of human rights in Strasbourg against the overall finding that the surveillance and information sharing with US agencies, such as the National Security Agency (NSA), is legal……”

    When Snowden was honoured by the Swedish who awarded him the “…Right Livelihood award for his revelations of the scale of state surveillance.”….. “…The awards jury, in its citation, said Snowden was being honoured “for his courage and skill in revealing the unprecedented extent of state surveillance violating basic democratic processes and constitutional rights”….”
    http://www.theguardian.com/us-news/2014/dec/01/nsa-whistlebloewer-edward-snowden-wins-swedish-human-rights-award
    ‘Edward Snowden wins Swedish human rights award for NSA revelations’
    Ewen MacAskill, The Guardian, Monday 1 December 2014

    Reply
    1. renounceuscitizenship Post author

      Thanks for your comment and for highlighting the post in your comment at the Isaac Brock Society, which I want to add here as follows:

      badger says
      December 27, 2014 at 2:49 pm
      I recommend that everyone read this post by USCitizenAbroad;
      https://renounceuscitizenship.wordpress.com/2014/12/27/brandeis-the-right-to-be-let-alone-is-the-most-comprehensive-and-valued-right/

      and the essay that it cites;
      http://faculty.uml.edu/sgallagher/Brandeisprivacy.htm

      as well as the recent book by Glen Greenwald – which is a must read.
      http://thetyee.ca/Books/2014/05/30/No-Place-to-Hide/

      Remember that Canada is part of the ‘Five Eyes’ along with the US;
      http://o.canada.com/news/cyber-spying-thrives-as-mankind-bids-farewell-to-a-private-life
      “….Eighteen months ago National Security Agency cyber spy Edward Snowden shocked the world when he emerged from the shadows to reveal the biggest government surveillance program mankind has ever known.

      By collecting bulk data on phone calls, emails and other social media communications, the U.S. government was essentially monitoring the private lives of pretty well everybody with a phone and/or Internet connection. Americans, Canadians, Europeans, Asians – it didn’t matter. We had all come under suspicion.

      Boosted by a decades-old intelligence gathering and sharing agreement called the “Five Eyes” – U.S., Canada, Britain, Australia and New Zealand – there was every reason to believe that not only was the U.S. sharing this information with its partners, but also these countries were watching their citizens with similar vigor….”…. http://o.canada.com/news/cyber-spying-thrives-as-mankind-bids-farewell-to-a-private-life

      Read the comments by the ACLU about the NSA;
      “…the ACLU, which filed a lawsuit to access the reports, said the documents shed light on how the surveillance policies of NSA impact Americans and how information has sometimes been misused.

      “The government conducts sweeping surveillance under this authority -— surveillance that increasingly puts Americans’ data in the hands of the NSA,” Patrick C. Toomey, staff attorney with the ACLU’s National Security Project, said in an e-mail.

      “Despite that fact, this spying is conducted almost entirely in secret and without legislative or judicial oversight,” he said….”
      http://www.bloomberg.com/news/2014-12-24/spy-agency-to-release-reports-documenting-surveillance-errors.html

      See the ACLU NSA archive of documents here:
      https://www.aclu.org/nsa-documents-search
      and related materials
      https://www.aclu.org/rein-surveillance-state

      NSA records at the Guardian:
      http://www.theguardian.com/us-news/the-nsa-files

      Remember that the FATCA-natics intended for FATCA to go far further than the collection of information related to the assessment of potentially taxable interest earned, and assets held in legal local bank accounts owned by those deemed to be US ‘taxable persons’ and citizens living outside the US. Carl Levin directly urges that FATCA go far further, in this now infamous letter ‘FATCA COMMENT LETTER SUBMITTED BY
      SENATOR CARL LEVIN’ January 11, 2012; http://bsmlegal.com/PDFs/CarlLevin.pdf
      “…Finally, one additional issue is critical to successful implementation of FATCA’s disclosure obligations: treating FATCA offshore account information as non-tax return information to ensure its accessibility to law enforcement and national security communities combating crimes other than tax evasion.
      Although FATCA is structured to address offshore tax abuse, offshore account information has significance far beyond the tax context, affecting cases involving money laundering, drug trafficking, terrorist financing, acts of corruption, financial fraud, and many other legal violations and crimes. Given the importance of offshore account disclosures, FATCA guidance and implementing rule should create account FATCA forms that are not designated as tax return information but, like FBARs, may be provided to law enforcement, regulatory, and national security communities upon request….”…

      And, FATCAfather Richard ‘Dick’ Harvey also posits that FATCA may be more palatable if it is marketed as a tool that goes beyond assessment of taxes; ‘Dick’ Harvey says; “…In pursuing that goal, the tax arms of government should consider further joining forces with the anti-terrorist-financing/money laundering arms of government.

      The goals of each arm of government are similar,12 and it may be easier politically to justify detailed customer due diligence if it is being done for a joint purpose (that is, both tax reasons and anti-terrorist-financing/money-laundering reasons). …”” August 9, 2012 FATCA — a Report From the Front Lines, J. Richard Harvey published in Tax Analysts http://www.taxanalysts.com/www/features.nsf/Articles/7FE9806866554F5985257A5500712E6D?OpenDocument

      So, in light of the Levin letter, this provision of the Patriot Act is particularly interesting:
      “…Section 215 of the Patriot Act authorizes the government to obtain “any tangible thing” relevant to a terrorism investigation, even if there is no showing that the “thing” pertains to suspected terrorists or terrorist activities. This provision is contrary to traditional notions of search and seizure, which require the government to show reasonable suspicion or probable cause before undertaking an investigation that infringes upon a person’s privacy. Congress must ensure that things collected with this power have a meaningful nexus to suspected terrorist activity or it should be allowed to expire…”
      https://www.aclu.org/reform-patriot-act

      FATCA and the activities of the NSA and the provisions of the Patriot Act are all part and parcel of the assault on human and civil rights – much of which is being turned against the very citizens whose civil and human rights that the US and Canada are sworn to uphold.

      “…FATCA’s issues run parallel to the surveillance state publicly revealed in Edward Snowden’s NSA leaks…”
      http://motherboard.vice.com/en_ca/blog/the-us-surveillance-dragnet-extends-to-foreign-bank-data-too

      Reply
    2. renounceuscitizenship Post author

      And adding your second comment from the Isaac Brock Society:

      badger says
      December 27, 2014 at 3:13 pm
      In re-reading my comment above, I think I haven’t made my purpose and the relevance to this thread clear. In inserting the long comment above, which mostly addresses FATCA rather than CBT, in this thread about US extraterritorial CBT (as applied to the globe, based solely on a long ago birthplace, or parentage, or an expired greencard, and no other justifiable ‘economic connection’) I meant to show how CBT – which may very well not be constitutional, has morphed into FATCA as one offshoot of the US worldview that brought us the NSA abuses – FATCA is deliberately designed to increase surveillance of all those outside the US deemed to be ‘US taxable persons’ under CBT. Unconstitutional extraterritorial CBT is the very shaky rationale being offered to the world as to why our local, legal, personal data should be confiscated extraterritorially by a foreign power. One of its flaws was that it could not be readily enforced extraterritorially – hence FATCA.

      FATCA extends the unconstitutional extraterritorial CBT into what USCitizenAbroad and others here have called ‘life control’.

      CBT is the poison tree – we can see robust evidence of that by the poisonous harvest it is producing – via FATCA ‘son of FBAR’.

      If US CBT can be shown to be unconstitutional and chopped down, then the tree no longer lives to produce fruit. But in the interim, we are resisting the importation of the poisonous fruit into our homes and home countries outside the US.

      I think it is important to see the connections between the uncontrolled and unconstitutional excesses of the NSA and the uncontrolled excesses of CBT and FATCA as applied outside the borders of the US.

      Reply

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