Analyzing the Foundations of the American Right to Privacy Part 2

Privacy Laws

This is part two 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 to 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 middle third of the article, with a view toward current privacy concerns and ideas.

In the first third of the article, which I discussed last post, the authors explained their reasoning for the existence of a separate right to privacy in American law. The authors noted that the creation of new technologies and newspaper gossip columns necessitated a new way to provide legal protection for a person’s ability to be let alone in their life. In the final paragraph, which I analyzed previously, the authors had mentioned that a person should be able to fix the limits of the expression of their thoughts, sentiments, and emotions.

Next, the authors begin to discuss what legal foundations the right to privacy might rely on. After some discussion, they note that existing law at the time of 1890 arguably afforded some protection for the right of an individual to their privacy. They go on to state that there were judicial decisions that may be cited to argue for a general right to privacy for thoughts, emotions, and sensations, “whether expressed in writing, or in conduct, in conversation, in attitudes, or in facial expression.” This quote made me think of a recent New York Times article about employee monitoring during COVID-19. The article discusses how one employee monitoring software periodically records what an employee is doing on their computer. This monitoring does not seem compliant with the right to privacy discussed in Warren and Brandeis’s article. By monitoring an employee’s computer, the employer – and the surveillance company – can see the employee’s writing, conduct, and, even, facial expressions, if the employee is on a video Zoom call.

In an attempt to rationalize the employee surveillance discussed in the Times article, the founder of the surveillance company noted that “workers know they are being watched, so it does not violate privacy.” This is an unpersuasive argument to justify peeling away someone’s right to privacy. As an analogy, just because someone knows they’re being insulted, doesn’t mean they’re not being insulted and doesn’t make the insult less rude.

Although Warren and Brandeis’s conceptualization of the right to privacy would arguably apply to a white-collar worker with a computer who is working from home, it is less clear if their idea of the right to privacy in “thoughts, emotions, and sensations” would extend to the warehouse worker who is also monitored by their employer. In a September 2020 paper, the Open Markets Institute detailed the employee surveillance that occurs at Amazon warehouses. For example, Amazon warehouses contain numerous cameras, ostensibly to deter theft. During COVID-19, the cameras have been equipped with a software to track employees’ relative movements, to ensure compliance with social distancing requirements. Amazon also uses item scanners to monitor how quickly and efficiently Amazon employees are handling items. These scanners can issue warnings if an employee spends too much “TOT,” or time off task.

Warren and Brandeis’s privacy protections, which were created for a middle or upper class besieged by questions from the press and interlopers with cameras in public parks, do not necessarily contemplate the unceasing surveillance for a manual worker in an Amazon warehouse.

Later in the article, the authors state that the right to privacy must be founded on principles broader than merely contractual rights. The authors state the contract rights will not always be enough to protect someone’s privacy. They explain that if evolving technological devices “afford abundant opportunities for the perpetration of such [invasive] wrongs without any participation by the injured party, the protection granted by the law must be placed on a broader foundation” than contract law. They give the example of photography. When photographic technology was such that a person had to hire a photographer, travel to the photography studio, and sit for many minutes for the portrait, it is easier to argue that the individual does not have a right to privacy that would prohibit the photographer from taking their picture. However, if, because of new technologies, a photographer can quickly and secretly take someone’s picture who is riding their bike outside, the law must include protection for this passive non-participating observed person. This theory resonates with me. I don’t think that a person agrees to being monitored or observed or recorded merely by being passive. As technology creates opportunities for entities to monitor, observe, or record without any participation by the observed party, the law should recognize the possibilities for violations of the right to privacy.

A few paragraphs later, the authors make a telling statement. They state the reasonableness of prohibiting a photographer to photograph a woman without her consent. They then go on to state, if prohibiting non-consensual photography is reasonable, “how much less should be tolerated the reproduction of her face, her form, and her actions, by graphic descriptions colored to suit a gross and depraved imagination.” This statement makes clear one of the focuses of the authors’ theoretical right to privacy. They are attempting to protect womanhood, almost certainly white and upper-class womanhood, from any “gross or depraved” (I read: sexual) perceptions. In fact, arguably, they are not even protecting womanhood – they are protecting society from having its (white, upper-class) women be thought of in a sexual way. This is a narrow and patriarchal focus that limits the otherwise reasonable legal theory of a right to privacy.

Next time, I will analyze the final third of this foundational paper and gather more insights and parallels to the current privacy landscape.