This is part three in my discussion of the law review article that is a foundational part of the legal beginnings of the right to privacy in the United States: “The Right Privacy” by Samuel D. Warren and Louis D. Brandeis, originally published in the Harvard Law Review in 1890. In this post, I’m analyzing the final third of the article, with a view toward current privacy concerns and ideas.
In the second third of the article, which I discussed last post, the authors explored various legal theories to use as a foundation for creating a new “right to privacy.” The authors stated that people should have a right to be private about their own thoughts, expressions, or emotions. The authors also noted that privacy law must keep up with technology. As technology gets created, especially if that technology allows for passive surveillance, the law must contemplate protections for individuals.
For the rest of the article, the authors provide more details about their new right to privacy. They consider the limitations of this right and also what remedies or damages might be granted if someone’s right to privacy is violated. During this discussion, the authors state one of their guiding principles: “the exact line at which the dignity and convenience of the individual must yield to the demands of the public welfare or of private justice.”
The first limit to the right to privacy that is listed by the authors is that the right to privacy should not prohibit any publication of matter in the public interest. The authors seem to be thinking about politicians during their discussion of the public interest. They specify that “a modest and retiring individual” would have more protection than a would-be congressman. I was actually thinking about this topic this weekend, while I was reading Anna Wiener’s New Yorker article about Signal. Signal is a donation-based messaging and calling service that uses end-to-end encryption to secure the communications of Signal’s users. Signal is used by many people and groups, including Congressional staffers and political groups. Signal is donation-based. However, the New Yorker article caused me to think about the increased privacy tools available to the wealthy and the powerful. Warren and Brandeis’s article contemplates a decreased privacy right for powerful or public figures, but, I think the opposite is often true. When privacy safeguards are not built into our communication infrastructure, the rich and powerful can pay money to have their privacy protected while other individuals accept the privacy infrastructure they’ve been given.
The final five limits to the right to privacy, as listed by the authors, are: the right to privacy does not apply to privileged communications, such as witness testimony; the right to privacy should probably not encompass private details about another that are repeated only orally; the right to privacy cannot apply to any information or publication that has been published by the individual; the right to privacy is not limited by whether the private details are true; and it is not necessary to demonstrate “malice” to show an invasion of the right to privacy.
The discussion of truth or falsity brings to mind the Cambridge Analytica saga. With so much of our data being used by marketers, the question is not whether some certain data point is “true” or “false.” The question becomes what can a marketer do to influence everyone’s behavior by using people’s data.
Warren and Brandeis close their article by discussing the damages and remedies that should be available to people who sue for a breach of their right to privacy. First, Warren and Brandeis state that an individual should be able to sue for damages, including an “injury to feelings.” The authors also believe that an individual should be able to sue for an injunction to stop the invasion of privacy from continuing. I would add that individuals should be able to recoup the profit generated from their data creation.
The article concludes with this patriarchy-infused question: “The common law has always recognized a man’s house as his castle, impregnable, often even to its own officers engaged in the execution of its commands. Shall the courts thus close the front entrance to constituted authority, and open wide the back door to idle or prurient curiosity?” The military- and gender-based metaphor is limited in its usefulness, but I do find interesting the question raised. How is it that we can require a police officer to have a warrant to gain entrance into an individual’s private life, but that we can allow other entities to gain whatever knowledge they’re able to scrape together through the “back door?”
The final question also showcases the limitations of Warren and Brandeis’s article, which was focused mainly on photography and other new technologies that might recreate or represent the private thoughts and actions of individuals who are “retiring and modest.” The authors were not contemplating a surveillance infrastructure that would gather data for security, convenience, persuasion, and control.