Privacy in the Early Age of Devices
Samuel D. Warren and Louis Brandeis were well ahead of their time for contemplating and establishing a framework for and method to determine the boundaries of privacy expectations within 1890’s America. Warren and Brandeis’ work cites case law and legal opinion from as far back as 1743 on matters foundational to privacy writ large. Key to their argument is the notion that law protecting privacy was desirable and that there is “indeed … [a] necessity of some such protection.” [1] Interestingly, the pillars of privacy are broadly derived from 1) slander and libel law, 2) copywrite and intellectual property law, and 3) an unresolved legal matter of property law and a “right to be let alone”.[1] Warrant and Brandeis pillars result in a degree of minutiae dictating whether a singular matter has complied with, or afflicted privacy. The example of a letter between persons in confidence contrasted to the unsolicited letter to an unwitting recipient demonstrate the nuance of privacy law in tangible means.[2] It demonstrates Warren and Brandeis’ inclusion and exclusion of various matters was not only a sound privacy stance but a sensible approach.
Provided these three pillars interdependent upon one another, Warren and Brandeis hit close to the mark. They accurately describe a measure of the “right to be let alone” [2] but miss the precise definition of how that definition should manifest in U.S. code. Remarkably, they do not turn to the Fourth Amendment in the Bill of Rights [3] as ammunition for their opinion, but conclude on the importance for the “right to be let alone” as compared to other existing laws on wrongful imprisonment and malicious prosecution. Warren and Brandeis detail aspects of media over-reach, even from two hundred years ago, neatly defining problems in today’s world of gossip news and opinion-driven marketing ploys. They envision other incredulous acts that amount to resulting in a world where “what is whispered in the closet shall be proclaimed from the house-tops.” The mention of “mechanical devices” [1] is precise in nature. Ultimately, their perspective lacks opportunities to enact or methods to address the matter of privacy as a recognized, codified component of judicial logic. So, while this review agrees in large part with Warren and Brandeis idea of a “right to be let alone” it does not see the argument without flaw.
References:
[1] S. D. Warren and L. D. Brandeis, “The Right to Privacy,” Harvard Law Review, vol. 4, no. 5, pp. 193–220, 1890, doi: 10.2307/1321160.
[2] Lex Phonographica 1: Samuel D. Warren & Louis D. Brandeis, The Right to Privacy (1890), (Jul. 28, 2019). Accessed: Oct. 22, 2022. [Online Video]. Available: https://www.youtube.com/watch?v=DpqYZa053B8
[3] “U.S. Constitution — Fourth Amendment | Resources | Constitution Annotated | Congress.gov | Library of Congress.” https://constitution.congress.gov/constitution/amendment-4/ (accessed Sep. 02, 2021).
