Right to Be Let Alone

Edition label: 2026-10

Definition: Justice Brandeis’s articulation in his Olmstead (1928) dissent of the most fundamental privacy right protected by the Constitution — “the most comprehensive of rights and the right most valued by civilized men.”¹

Overview

Samuel Warren and Louis Brandeis used and developed the phrase in their 1890 Harvard Law Review article “The Right to Privacy” (4 Harv. L. Rev. 193), while crediting Judge Thomas Cooley with the earlier formulation of a right “to be let alone”.² Brandeis carried the formulation into his Olmstead dissent (277 U.S. 438, 478) thirty-eight years later, where he framed it as a constitutional principle protecting against government intrusion.³

The formulation was a dissenting position in 1928 but has become an influential articulation of constitutional privacy. Katz v. United States (1967) overruled Olmstead’s trespass doctrine,⁴ and the phrase appears in later privacy decisions including Stanley v. Georgia (1969)⁵ and Eisenstadt v. Baird (1972).⁶

Later influence

A line of development runs from Olmstead (1928) through Katz (1967) and Keith (1972), which to some degree presaged Foreign Intelligence Surveillance Act (FISA) (1978); the Privacy and Civil Liberties Oversight Board (PCLOB)’s 2014 Section 215 report traces Fourth Amendment doctrine from Olmstead to Katz.⁷ The Wyden-Udall letters (2011–12) raised the related problem of secret interpretations of surveillance law.⁸ The Church Committee Book II (1976) quoted Brandeis’s Olmstead dissent on surveillance technology in its National Security Agency (NSA) findings, and treated mail opening (HTLINGUAL) and Counterintelligence Program (COINTELPRO) as matters of constitutional as well as statutory violation; any reliance on the right-to-be-let-alone framework is implicit.⁹

Related Entities

• Louis Brandeis — articulated the formulation in 1890 article and 1928 dissent

Related Concepts

• fourth-amendment-doctrine
• reasonable-expectation-of-privacy — the modern operationalization
• surveillance-doctrine

Source References

• Supreme Court of the United States. Olmstead v. United States, 277 U.S. 438 (1928). Decided June 4, 1928. — an influential articulation in the Brandeis dissent
• Bazan, Elizabeth B. The Foreign Intelligence Surveillance Act: An Overview of the Statutory Framework and U.S. Foreign Intelligence Surveillance Court and U.S. Foreign Intelligence Surveillance Court of Review Decisions. CRS Report RL30465. Congressional Research Service, February 15, 2007.
• Eisenstadt v. Baird, 405 U.S. 438 (1972).
• Privacy and Civil Liberties Oversight Board. Report on the Telephone Records Program Conducted under Section 215 of the USA PATRIOT Act and on the Operations of the Foreign Intelligence Surveillance Court. Washington, DC, January 23, 2014.
• Stanley v. Georgia, 394 U.S. 557 (1969).
• Supreme Court of the United States. Katz v. United States, 389 U.S. 347 (1967). Decided December 18, 1967.
• Supreme Court of the United States. United States v. United States District Court for the Eastern District of Michigan (Keith), 407 U.S. 297 (1972). Decided June 19, 1972.
• U.S. Senate, Select Committee to Study Governmental Operations with Respect to Intelligence Activities. Intelligence Activities and the Rights of Americans. Final Report, Book II. S. Rep. No. 94-755, 94th Cong., 2nd sess. Washington, DC: U.S. Government Printing Office, April 26, 1976.
• Warren, Samuel D., and Louis D. Brandeis. “The Right to Privacy.” Harvard Law Review 4, no. 5 (1890): 193–220.
• Wyden, Ron, and Mark Udall. Letters to Eric Holder, Attorney General of the United States. U.S. Senate, September 21, 2011, and March 15, 2012.

Open Questions

• Question: How does Book II’s discussion of surveillance technology, mail opening (HTLINGUAL), and COINTELPRO relate to Brandeis’s right-to-be-let-alone framework?