Warren & Brandeis

My previous assertion on privacy and technology was the following: because we haven’t developed the value of privacy in US political and cultural thought in the same way that US society rallies around free speech, we haven’t imbued our technology or market transactions with the value of privacy protection . To use an example, if we aren’t going to get that miffed about extraconstitutional warrantless wire taps, then how can we be outraged over personalized ultra-savey grocery store coupons?

Although I think it’s true that society would benefit from a deeper philosophical understanding of privacy and personal liberty, my assertion also borders along that Orwellian slippery slope pervading the arguments of right to privacy proponents and often turning off more moderate citizens. More importantly, my assertion also ignores the historical legal context that got us here. We can start in the modern era with Warren and Brandeis who breathed new life into privacy via the common law. Note that this borrows heavily from the first chapter of my college thesis from May 2001 and owes a great deal to the influence of Viktor Mayer-Schönberger who pushed me to differentiate between societal desires for privacy and its normative state.

In their famous 1890 Harvard Law Review article, The Right to Privacy, Samuel Warren and Louis Brandeis conceived a modern notion of privacy asserting a “right ‘to be let alone'” for protection of the “inviolate personality.”[1] Upset by the ravenous nature of journalists and gossip columnists (Ye Olde TMZ), Warren and Brandeis laid out an argument for a right to privacy based on the common law that protected against intrusion of the private sphere. At the time, mass urbanization had brought large groups of people closely together, and new technology such as photography allowed for a new kind of public intrusion into one’s private sphere. Warren and Brandeis argued that “the intensity and complexity of life, attendant upon advancing civilization, have rendered necessary some retreat from the world, and man, under the refining influence of culture, has become more sensitive to publicity, so that solitude and privacy have become more essential to the individual.”[2]

Because “only a part of the pain, pleasure, and profit of life lay in physical things,” it was natural for law to move from the protection of tangible objects to intangible objects as they were recognized.[3] Warren and Brandeis were drawing a metaphor between the ongoing expansion of laws protecting intellectual property rights to a right to protect private information not just private property. Still they went further. The right to privacy of personal information did not derive its power so much from the protection of intellectual property, as the protection of intellectual property derived its power from the right to privacy.[4] Furthermore, they argued privacy was not property, “unless that word be used in an extended and unusual sense;” Warren and Brandeis saw fit to call the traditional relationship between privacy and property, a “fiction.”[5] This was an extraordinarily progressive reconceptualization of the individual citizen, and it stemmed from technological advancement shining just a slightly different light on society. As our use of technology also does today.

The Right to Privacy would have a profound effect on the relationship between the citizen and government in the 20th Century through a series of US Supreme Court decisions. As well, Warren and Brandeis’s use of the English Common Law, a principle not uncommon to jurisprudence in the 19th Century, opened up and redefined the world of privacy torts wherein an individual’s rights to privacy did not arise “from contract or from special trust, but [as] rights against the world.”[6] As this series of posts continues, with breaks for sillier matters, I will examine this history and the split between the rights-based (or deontological) thinking that largely governs our actions as citizens in the public sphere and the utility-based (or teleological) thinking that largely governs market transactions between individuals (including those wily individuals, corporations).

[1] See generally Samuel D. Warren and Louis Brandeis, “The Right to Privacy,” Harvard Law Review 4 (1890): 193-220. The origin of the phrase ‘right to be let alone’ is duly accredited to Judge Cooley.

[2] Ibid., 196.

[3] Ibid., 195.

[4] Ibid., 205.

[5] Ibid.. 213.

[6] Ibid, 213.