I was very much influenced by a great book by the scholar Neil Richards called Intellectual Privacy, that [Louis] Brandeis changed his mind on the proper balance between dignity and free speech.
Jeffrey RosenBefore Sept. 11, the idea that Americans would voluntarily agree to live their lives under the gaze of a network of biometric surveillance cameras, peering at them in government buildings, shopping malls, subways and stadiums, would have seemed unthinkable, a dystopian fantasy of a society that had surrendered privacy and anonymity.
Jeffrey RosenI'd say that [Louis] Brandeis practiced a kind of a "living originalism," to use the title of Jack Balkin's great book. He said you start with the paradigm case, which in the case of the Fourth Amendment was these general warrants or writs of assistance, but you define it at a level of abstraction that you can take it into our age and make it our own.
Jeffrey RosenInitially the papers said that the fact that Louis Brandeis was picked because he was Jewish. The New York Sun said he's the first Jew ever picked for the bench - a long and bitter fight expected in the Senate over confirmation.
Jeffrey RosenI don't think he would have had any trouble answering Justice Sonia Sotomayor's excellent challenge in a case involving GPS surveillance. She said we need an alternative to this whole way of thinking about the privacy now which says that when you give data to a third party, you have no expectations of privacy. And [Louis] Brandeis would have said nonsense, of course you have expectations of privacy because it's intellectual privacy that has to be protected. That's my attempt to channel him on some of those privacy questions.
Jeffrey Rosen