In 1890, Louis D. Brandeis was still a Boston lawyer. He was 34 years old and would not join the U.S. Supreme Court for another 26 years. That year, together with Samuel Warren, he published The Right to Privacy in the Harvard Law Review, one of the foundational texts of the modern right to privacy.
The concern was concrete. Photography had made it much easier to record other people’s lives, while the press had discovered the enormous commercial appeal of publishing them. Brandeis and Warren sought to give legal form to what they called the right to be let alone.
In 1913, Brandeis wrote about a different problem. In What Publicity Can Do, he addressed the concentration of economic power and defended publicity as a means of subjecting that power to scrutiny. It was there that he used the famous image of sunlight as the best disinfectant.
Neither text was about criminal procedure.
One dealt with the improper exposure of private life. The other with the need to expose power to scrutiny.
Criminal proceedings bring both problems together.
Publicity Exists to Scrutinize Power
When the State enters a home, intercepts a conversation, freezes assets, arrests someone or brings a criminal charge, it exercises power.
That is what must remain visible.
Why was the search authorized? What evidence supported it? Was the warrant executed within its limits? What justified the arrest? What evidence supports the charge? Why was someone convicted?
Publicity exists so that these questions can be asked.
It does not exist so that everyone can watch a suspect in pajamas while officers enter his home.
The distinction sounds obvious.
It no longer is.
For a long time, a public trial was essentially a trial held with open doors. Today, it can be livestreamed, stored indefinitely, clipped and redistributed in videos lasting only a few seconds.
That produces something different from publicity.
It produces content.
A witness’s hesitation survives the testimony. A defendant’s reaction survives the trial. A sentence extracted from hours of oral argument starts circulating without what came before or after it.
The proceeding ends.
The exposure does not.
When Publicity Becomes Punishment
Criminal proceedings deal in provisional conclusions.
An investigation begins with suspicion. An indictment contains an accusation. A witness may be wrong. Evidence may be excluded. A theory that initially seemed convincing may not survive adversarial testing.
Outside the courtroom, provisionality disappears quickly.
A search becomes proof of guilt. An indictment becomes fact. A suspect starts being presented as the perpetrator.
And the consequences begin before any judgment is entered: contracts are terminated, credit is suspended, people are removed from positions, jobs are lost, personal relationships are destroyed, and names become permanently linked to an accusation.
An acquittal may come years later.
There is no acquittal from a search engine.
I have already written on this blog about selective leaks in major criminal investigations, in which the press obtains information that the defense itself has not yet been able to access.
But abuse does not require a leak.
Information may be public and still be exploited merely to increase someone’s social punishment.
There is a public interest in knowing why a person was investigated.
Not necessarily in watching that person be humiliated.
Transparency of Whom?
Byung-Chul Han starts from a different provocation in The Transparency Society. His target is the elevation of transparency into an absolute value: the idea that making everything visible would, by itself, produce a better society.
It does not.
More information does not necessarily mean more knowledge. And forcing everything into visibility can destroy precisely the private sphere that allows people to live without permanent exposure.
In criminal proceedings, the distinction must be even sharper.
I want transparency from the State.
I want to know why someone was arrested. I want to read the decision authorizing a search. I want to know the charge and the evidence supporting it. I want to be able to scrutinize the conduct of the police, prosecutors and courts.
None of that requires the defendant to become transparent.
A search of a phone may reveal years of a person’s life: family conversations, photographs, financial problems, medical information, marital disputes, romantic relationships, resentments, jokes and intimate details.
Some of that material may matter to the investigation.
It does not follow that it matters to the public.
There is a point at which publicity stops allowing us to know what the State did and starts allowing us to know everything the State discovered about someone.
That is precisely when the light has moved to the wrong target.
Secrecy Can Also Miss the Target
In sexual-offense cases, the problem appears in reverse.
Proceedings are kept under seal to protect the victim. It is difficult to imagine a stronger justification for secrecy: turning to the justice system cannot mean surrendering one’s identity, intimate life, examinations, testimony and sexual history to public curiosity.
But secrecy does not cover only one person.
It covers the proceeding.
And while it protects the victim, it also protects the accused from the exposure that accompanies other criminal cases.
That does not make the rule wrong. It simply shows that secrecy can produce effects beyond its immediate purpose.
In 2024, Law No. 15,035 attempted to separate these interests. For certain sexual offenses, it preserved the secrecy of the proceedings and the victim’s information, while making certain data concerning the defendant public after a first-instance conviction. If the conviction is reversed on appeal, secrecy is restored.
One need not agree with that solution to see the problem it seeks to address.
Does protecting the victim require hiding everything?
Secrecy Needs an Object
Perhaps this is where we still work in an excessively crude way.
We treat publicity and secrecy like a switch. Either the case is open, or it disappears behind a seal.
But the reasons that justify secrecy are usually much more specific.
If the problem is the victim’s identity, protect the identity.
If a particular document contains photographs or intimate information, restrict access to that document.
If an investigative measure depends on surprise, keep it secret until it is carried out.
If a decision can be published without certain personal data, remove the data.
Secrecy should not be broader than the reason that justifies it.
Nor should it last longer.
The same caution applies to publicity. The fact that information appears in a public case does not, by itself, answer why it should be amplified, reproduced and preserved forever.
There is an important difference between public interest and an interested public.
Criminal proceedings cannot afford to confuse the two.
Where Do We Point the Light?
Brandeis was not writing about criminal procedure when he defended privacy. Nor was he writing about criminal procedure when he defended publicity.
We are the ones who face both problems at once in criminal cases.
On one side, there are people subjected to the most aggressive form of State intervention, whose lives may be exposed far beyond what is necessary.
On the other, there are institutions that investigate, prosecute, arrest and convict and, for that very reason, must operate under scrutiny.
The question, then, is not whether we should choose publicity or secrecy.
It is another one:
where are we pointing the light?
I want light on the reasons for an arrest.
On the basis for a search.
On the evidence used to prosecute.
On the decision to convict.
On the way the State exercises its power.
The entire life of the person caught inside the process does not need to come with it.
Criminal proceedings need light. Not a spotlight.
