A brief history of the right to privacy in the Unites States of America

By Rémi Gambino, second year masters student in Economic Law (Global Business Law & Governance) and co-Editor in Chief of the Sciences Po Law Review.

On December 15, 1890, Samuel Warren and Louis Brandeis published in the Harvard Law Review an article titled “The Right to Privacy”[1]. This seminal article is often contemplated as the foundation stone of modern privacy law in the United States. “The right to be let alone”[2] from the invasions of the press, the photographers, or any other recording device, was the answer to the technological evolutions threatening to erase the boundaries between public and private life.  Amid the 20^thcentury, the right to privacy progressively gained constitutional value and was considered one of the most important safeguards against the government’s incursion in private citizens’ exercise of many other rights. Today, the growing concerns surrounding privacy stems from the massive amount of personally identifying information generated by a multitude of connected objects. In our modern era of Big Data, the very existence of a right to privacy is questioned.

Through a short journey in the history of the right to privacy in the U.S., we will try to present the multiple answers given to the question: “Who should know us and how?”[3]

I – An early definition of privacy

When Samuel Warren and Louis Brandeis argued in favor of the creation of a right to privacy, their main concern stemmed from the dangers caused by recent inventions. In particular, photography was an emblematic contemporary innovation enabling the “unauthorized circulation of portraits of private persons.”[4] In other words, the evolution of technology was the engine powering a new need for a definition of privacy. To build their argument, the two lawyers from Boston adopted a property-based approach to the concept of privacy. The development of the concept of privacy in such a theoretical framework is no surprise in light of Alexis de Tocqueville’s analysis of the American society: “In no country in the world is the love of property more active and more anxious than in the United States.”[5]

Warren and Brandeis first explore the legal remedies available to the victims of slander and libel, only to find that they are inadequate to protect one’s privacy. By focusing on the damages made to someone’s reputation, the laws of defamation require for the publication to cause harm to the individual. Under this body of law, an individual is only protected if its “external relations to the community” are damaged. However, the right to privacy aims at protecting more broadly the individual from the publication of its information, whether they are beneficial or detrimental to its public image. Second, they contend that intellectual property law is insufficient to protect someone’s privacy. More specifically, what someone would like to keep private, such as “a collection of gems”[6] or “thought, sentiment, or emotions”[7], if made public by a third party, will not be subject to the protection granted by intellectual property law. Therefore, the authors call for new legal protections leading to an extension of the law as well as an extension of the notion of privacy.

Warren and Brandeis present the idea of a “private individual” endowed with an “inviolate personality” to illustrate their definition of an extended right to privacy. Painting the picture of the private individual, the authors refer to French law[8] and Victorian norms of respectability. In the late nineteenth century, while defamation was an assault on one’s public image, a violation of its privacy could be seen as a deeper incursion in its personhood. From a defense against the publicity of someone’s life, the right to privacy gained judicial importance through the twentieth century, especially as write to be let alone.

II – The right to privacy in the Civil rights era

If the right to privacy was born to protect private citizens from journalists and photographers, the early twentieth century gave rise to new concerns about who was supposed to know information about the U.S. population. In particular, in the name of public order, private companies and law enforcement officials started keeping records of the identity of workers or suspect citizens. Engaging in new public health measures and developing social welfare programs, the U.S. government had an interest in knowing more about the health and finances of its citizens. The war also imposed severe restrictions on civil liberties and triggered a rapid strengthening of federal agencies’ surveillance of the population. However, at that time, the right to privacy was not yet considered as a legal path to ensure the protection of other rights. It is not until the 1960s that this approach to privacy gained traction.

In the heart of the prohibition era, Justice Louis Brandeis, now sitting on the Supreme Court, addressed the question of privacy regarding the invasions of the state in private matters. In Olmstead v. United States (1928),[9] the Court held that the use of wiretapped private telephone conversations, obtained by federal agents without judicial approval and subsequently used as evidence, did not constitute a violation of the rights protected by the Fourth and the Fifth Amendments. In his dissent, Justice Brandeis notes that with the evolution of technologies, “[s]ubtler and more far-reaching means of invading privacy have become available to the government.”[10] This opinion introduces, even though unsuccessfully, the right to privacy as a component of other constitutional rights formally established by the law and Court’s precedents.

It is during the Civil rights era that the right to privacy truly acquired a constitutional value. In Griswold v. Connecticut(1965),[11] the Supreme Court invalidated a Connecticut law prohibiting the use of contraceptives on the grounds that it violated the “right to marital privacy”[12]. Despite not being specifically enumerated in the Constitution, the majority opinion found that marital privacy was implied by the provisions of the First, Third, Fourth, and Fifth Amendments. Justice William O. Douglas, the author of the majority opinion, famously identified “emanations” of protection in the “penumbras” of the Bill of Rights.[13] This metaphorical analysis of the existence of a right to privacy led critiques to question the very presence of such a right in the Constitution. Nevertheless, Griswold paved the way for more protection from unwarranted governmental intrusion into one’s life. The Court relied on the right to privacy and its language in cases regarding abortion such as Roe v. Wade (1973): “This right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, […], in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”[14]

From Warren and Brandeis’s definition of privacy in 1890 to the constitutional protection of this right in 1965, it is worth noticing the transition from the protection of the image of public men to the protection of marital privacy. Beyond the marital bedroom, the concept of privacy acquired a broader scope protecting the individual from intrusions in its privacy anywhere he or she would be located. Katz v. United States (1967),[15] by overturning Olmstead, provided a new interpretation of the Fourteenth Amendment’s protection against “unreasonable searches and seizures”. The Court held that the Fourteenth Amendment “protects people, not places.”[16] As a result, the right to privacy lost its property-based definition to gain a more mobile and all-compassing meaning.

III – Big Data and a “post-privacy” society

Advances in technology progressively increased the reach of the government as well as private companies in tracking individuals and engaging in surveillance of private citizens. Cases like Olmstead and Katz illustrate perfectly the growing concerns associated with eavesdropping and other state surveillance activities that became technologically easier to implement through the 1970s-1990s. A rising sense of awareness appeared in American society regarding the existence of massive records of private citizens’ activities, from credit bureaus to school dossiers to Social Security Numbers. Consequently, with the passage of the Privacy Act of 1974, the United States joined European nations in a move to establish a set of data protection laws. The Privacy Act[17] prohibited the secret gathering of data, the collection of information for one use to be used for another, and gave individuals the power to know and correct material in their records. Several other bills were passed in the following years in the U.S, initiating a sectoral approach to data protection and data privacy typical to the American legal system.

At the polar opposite of Warren and Brandeis’s Victorian norms of private life, the American society of the turn of the 21st century glorified a culture encouraging the disclosure of private matters. A general push to transparency has been encouraged by self-broadcasting tools, television talk shows, blogs, and social networks. The constant sharing of information in which private citizens voluntarily engage on social media has caused commentators to warn against a society in which privacy has disappeared.[18]  It could even be argued that the U.S. Courts have favored freedom of speech and expression over the right to privacy.[19] The revelation of massive domestic surveillance in which law enforcement has been engaged with the help of private companies like Google tend to confirm the concerns of these commentators.[20] Edward Snowden’s revelations on the activities of the National Security Agency provided a stark image of consequences of the collaboration of large tech companies with the governmental agencies. The technological capacity of artificial intelligence[21] and new connected objects widely available to the public could expand even more the risks of intrusion in someone’s private sphere and diminish the ability for someone to exercise its “right to be let alone”.

As the world entered the Zettabyte Era somewhere in the middle of the 2010s,[22] the existing amount of digital data in the world surpassed what could be fathomable to the human mind. Big Data became antitrust regulators’ focus and a source of worries for data protection activists around the globe. The creation of a “known citizen”[23] has been at the heart of ethical, political, social and legal concerns that are constantly evolving with technology. From Samuel Warren and Louis Brandeis’s understanding of privacy, to the current data protection laws in place in the United States, the definition of privacy has evolved with the ability of individuals, companies and government organizations to collect and process American citizens’ data.

[1] Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harvard L.R. 193, (Dec. 15, 1890).

[2] Id.

[3] Sarah E. Igo, The Known Citizen – A History of Privacy in Modern America 350 (2018).

[4] Samuel D. Warren & Louis D. Brandeis, supra 195.

[5] Alexis de Tocqueville, Democracy in America, Vol. II, 314 (The Century Co. 1898) (1840).

[6] Samuel D. Warren & Louis D. Brandeis, supra 203.

[7] Samuel D. Warren & Louis D. Brandeis, supra 199.

[8] Samuel D. Warren & Louis D. Brandeis, supra 214.

[9] Olmstead v. United States, 277 U.S. 438 (1928).

[10] Id. at 473.

[11] Griswold v. Connecticut, 381 U.S. 479 (1965).

[12] Id. at 481-486.

[13] Id. at 484.

[14] Roe v. Wade, 410 U.S. 113, 153 (1973).

[15] Katz v. United States, 389 U.S. 347 (1967).

[16] Id. at 351.

[17] Privacy Act of 1974, 5 U.S.C. § 552a.

[18] Thomas Friedman, Four Words Going Bye-Bye, N. Y. Times, (May 21, 2014).

[19] Bonome v. Kaysen, 17 Mass. L. Rep. 695 (2004).

[20] Geofence Warrants and the Fourth Amendment, 134 Harv. L. Rev. 2508, (May 10, 2021).

[21] Cathy O’Neil, Weapons of Math Destruction – How Big Data Increases Inequality and Threatens Democrac (Broadway Books, 22017).

[22] Thomas Barnett, Jr., The Zettabyte Era Officially Begins (How Much is That?), (Sept. 9, 2016), Available at: https://blogs.cisco.com/sp/the-zettabyte-era-officially-begins-how-much-is-that.

[23] Sarah E. Igo, Supra note 3.