Privacy

The Legal History of Privacy

Much of the controversy over the right to privacy arises from the fact that this right is not specifically enunciated in the Constitution, though it is implied in the Third Amendment prohibition against the quartering of soldiers in private homes and the Fourth Amendment prohibition against unreasonable searches and seizures. In addition, courts were slow to recognize that harm—mental harm in particular—could occur as a result of an invasion of privacy. Not until 1928 did the Supreme Court, in Olmstead v. United States, recognize that there may, indeed, be what Justice Louis Brandeis called a right “to be let alone.”

The phrase, which, in fact, had been used some 40 years earlier in a treatise on tort law, caught on and was used in a number of Supreme Court cases through the years. In Rowan v. U.S. Post office Department in 1970, for example, the Court in a junk-mail case involving pornographic material, held that “the right of every person to be let alone must be placed in the scales with the right of others to communicate.” “The ancient concept that ‘a man's home is his castle' into which ‘not even the king may enter,'” the Court wrote, “has lost none of its vitality, and none of the recognized exceptions includes any right to communicate offensively with another.” And, in one of its most controversial cases, Roe v. Wade (1973), the Court used the right of privacy as part of its rationale for providing women, in some circumstances, with the right to have abortions.

Invasion of privacy, therefore, is a relatively recent tort (civil wrong) in American jurisprudence. Philosophically it traces its origins to a law journal article that Louis Brandeis co-authored long before he joined the Supreme Court. Professor Samuel Warren was apparently impatient with the way the media covered the wedding of his daughter and recruited his colleague on the Harvard Law School faculty to help with the article. “The Right of Privacy” was published in 1890 in the Harvard Law Review, and advocated the same right to be left alone that Justice Brandeis would write about nearly 40 years later.

In the meantime, advancements in technology related to the collection and dissemination of information increased interest in the concept of protecting individual privacy. Concerns about how the use of the telephone and camera could invade an individual's privacy by making it easier to publicize private information increased with the development of telephoto lenses, listening devices, and video. With such developments, concerns about the “publishing” of private information became concerns about “publicizing” the information—that is, disseminating it to a large audience through the mass media.

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