Western society has not always conceptualized privacy as a thing that certain people should, or even could, possess. And privacy as a legal concept has only even existed in the United States for 130 years. I thought it would be interesting to analyze the legal foundations of privacy in the United States and to see how those foundations have evolved or even devolved over the decades.

To that end, I have re-read the law review article that started it all, 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. I re-read this article with an eye toward contemporary issues, especially intersectionality with womanhood and with how the right to privacy might only have been contemplated for the white upper class. The article is short – about ten pages not including end notes – but it is dense. In this post, I’m analyzing the first third of the article. I hope to continue with the rest next time.

The article was Warren and Brandeis’s justification for creating a legal right to privacy in American jurisprudence. The article began with an argument that the changing society had created a need to recognize privacy rights as something afforded to people under the law for the full protection of their person and their property. It is intriguing to think about a right to privacy as extending from a right to the full protection of a person’s property. An example of this that immediately came to my mind is the data cloud that we all create just by virtue of using day-to-day technology. For example, an MIT Sloan Management Review article, written by James E. Short and Steve Todd, noted that Microsoft paid LinkedIn about $260 per user for their users’ data. How would data collection and management look different if we each had a property stake in the value generated by our data? Would LinkedIn be holding our data in trust, until we wanted to access our property interest in it? Would Microsoft be required to give the LinkedIn users a portion of the $260 it paid? People generate tremendous data clouds, and companies find these data clouds to have value. Could income inequality be lessened if companies were required to pay their users for the data they generated? Tangentially, this also, of course, raises issues of our capitalist economy and the advisability of bringing something new into the market. Although our data could be considered a “good” that has a “price,” do we want to live in a world where data about us has a monetary value and can be bought and sold?

The next portion of the article that I found striking was in the next paragraph. Here, the authors listed a litany of legal rights that had been created in order to protect human “sensations.” The authors mentioned assault as an example, which was created to protect against not only actual bodily injury – which would be battery – but also the mere attempt to injure, which creates a sensation of fear in the victim. In this paragraph, the authors went on to mention the legal concept of “alienation,” which protected a man’s marriage. Basically, a man could recover in court against another man who took his wife’s affections from him. I found this so interesting in an article about privacy, because the privacy of the wife and the man who was not her husband were not discussed at all. Instead, the importance lies not in protecting the private actions of the wife, but in protecting the husband’s “sensation” of security in his marriage.

The authors next argue that legal theories that protect against things beyond physical harm are important and necessary. They note that “thoughts, emotions, and sensations demanded legal recognition.” I love thinking about this notion. I love the idea that my emotions deserve legal recognition. In the context of privacy, do I have the right to experience my thoughts, emotions, and sensations in private? Can an organization, like Facebook, manipulate my emotions to enhance its data set? Also, if I’m in public, do I have a right to experience my emotions, whatever they may be? (Brings to mind people in a bar telling me to smile, for example.)

At this point, the authors begin to specifically discuss the need for a right to privacy. In their belief, this right was necessary because of the newly contemporary easy-to-use technology of the portable camera. Newspapers and private individuals were newly able to take pictures of strangers, have these pictures developed, and circulate copies cheaply. The authors were especially concerned with pictures taken of young (white) women. They mentioned the case of Marion Manola v. Stevens & Myers, whereby a young actress sued a photographer for taking a picture of her on stage and in tights. The authors also go to great lengths to denigrate newspaper gossip, under who’s “blighting influence” “no enthusiasm can flourish, no generous impulse can survive.”

According to the authors, these new developments, of cheap pictures and newspaper gossip columns, required an expansion of the law to create a right to privacy. The law already protected a person’s communications. Specifically, a person could never be compelled to express their thoughts, sentiments, and emotions and could fix the limits of how public any expression was. Reading these statements by the authors in the context of today’s technology regime, most protections that did exist covering our ability to control the publicity of our expressions have been completely undercut. Organizations can, and routinely do, record and track the feelings of their users and then sell that data to advertisers. In a Baffler article, Liz Pelly noted how Spotify has partnered with dozens of advertisers and marketing companies to sell users’ data, specifically about their mood. These technology users click yes on the “Terms and Conditions” box, but do they really have the ability to “fix the limits” on the publicity of their expressions when, in order to use a technology, they have to agree to the collection and selling of their mood data?

If our laws truly held to the promise present in Warren and Brandeis’s article, how different would our technology look? How different would our economy look? I’ll continue to analyze this article for more foundational concepts next time.