Warren & Brandeis “The Right to Privacy”

  • Warren, S. D., & Brandeis, L. D. (1890). The right to privacy. Harvard law review, 193-220.
  • Richards, N. (2015). Intellectual privacy : rethinking civil liberties in the digital age.

“The Right to Privacy” gets it all going. In it, Brandeis and Warren argue for a new form of injury that needs civil protections.

Their right to privacy has some limitations. It’s not violating a privacy interest if it’s of general public interest (W 214); if it’s released orally, p. 217, if it’s published by the individual p. 218. Just because it’s true or not released in malice isn’t a defense. p. 218

Richard’s explains some of the history. Warren’s wife was a important socialite and didn’t want to lose her social aura. The newspapers could publish embarrassing things or photographs and it was not what she wanted. The right to privacy as they described it would protect her honor and dignity by allowing her to sue for damages.

In general, the motivation was for the elite to protect their station, not something to apply widely.

Warren & Brandeis came up with a description that made sense at the time. It used the properties of defamation as a framework for suing for damages.

The backdrop of the circumstances is the invention of Kodak cameras that allowed you to easily take photographs in candid situations. What the cameras showed could be published in the press to the dismay of the photographic subjects.

Technology changes have tracked changes in privacy understanding. Before Brandeis, the postal mail wasn’t secure. It’s protection was legislated. Telegraphs is another technology to produce information that is confidential. Telephones allowed the creation of wire taps which was a new mechanism for getting information.

Smart phones, digital cameras, audio and video records and a lot of other technologies are of recent vintage and their interaction with the concept of privacy is not a settled question.

Another facet to consider with privacy is to take it to the next level and see what is necessary to protect for the military. Privacy law doesn’t really apply, but any time there is a privacy interest, the military wants to be able to protect its missions by securing similar information through codes, or technological measures. Military organizations have much more advanced concerns than just the public’s protection in private situations. The reason that is relevant is that modern technology is also something that the military uses and they’re concerns about protecting themselves in using that technology might give a hint for what civilians might care about.  This might be a stretch to be a useful analogy, but I might be able to find examples in the future where it is a useful point of view.

Note that the terminology to talk about privacy is clumsy. “privacy problem” “privacy violation” “private communication” “private domain.” Coming up with a good glossary of terms is something I’m doing with the class, so hopefully I can make progress on the vocabulary part by doing the glossary

“Information” might be the biggest offender in the clumsy terminology setting. It’s easy to use terms interchangeably but they don’t always fit precisely with what I mean. Alternatively, when you want to communicate you’re not covering the whole range of topics.

Solove tried to solve this by giving names to situations, but when talking generically, the language can trip you up as you try to communicate precisely. His taxonomy has situations where privacy isn’t about information such as “decisional interference,” but information is still a useful proxy term to cover them all.