Despite the importance of privacy in our everyday lives, the U.S. Constitution contains no specific provisions for its protection. U.S. Courts have attempted to resolve privacy disputes by referring to protections articulated in the Bill of Rights, such as the Fourth Amendment’s prohibition of unreasonable searches and seizures. But the lack of unambiguous constitutional privacy protections has led to conflicting judicial opinions and much confusion by the public.
As an early guidepost through this thicket, in 1890 Samuel Warren and Louis Brandeis published a groundbreaking article in the Harvard Law Review arguing that privacy protections are part of a “right to be let alone.” The article strongly influenced theories of privacy over subsequent decades, and has been referenced in important U.S. Supreme Court rulings.
But since the 19th century, society has changed in profound ways. We now interact daily with technologies that closely track our communications and behavior, collecting personal data for targeted advertising, trade among data brokerages, and mining by governments for criminal and political investigations. More than ever, the right to be let alone would appear to be under siege.
In this paper I present two prominent critiques of the Warren/Brandeis conception of the right to privacy, so as to begin addressing the inadequacies of privacy protections in today’s world of ubiquitous digital information.
Richard A. Posner views privacy as a question of economics and market efficiency. He rejects the conception of privacy as “the right to be let alone,” and suggests that individual privacy has little economic value to society, in contrast to commercial privacy which can have great value in a capitalistic market-based economy.
Daniel J. Solove credits the Warren/Brandeis article on “the right to be let alone” for calling attention to privacy rights and its impact on theories of privacy that followed. But he says it falls short as a comprehensive conception of privacy. Solove offers a theory of privacy based on Ludwig Wittgenstein’s notion of family resemblances, accounting for the contextual value of privacy based on prevailing social practices and norms.
The three conceptions of privacy presented here, written decades apart, provide a sample of the broad spectrum of historical and contemporary theory and argument over the right of privacy. With no clear constitutional mandate for the protection of privacy, and no broad consensus on what privacy even is, individuals, the courts, and society as a whole face an expanding constellation of challenges over the implications of privacy in the digital information age. I explore that here, beginning with these three arguments.
Note: I wrote this short article for an assignment in a doctoral class on the history and foundations of information science. Given the assignment parameters, the article represents only a few points on the spectrum of conceptions about privacy. I was unable to include the important theoretical work of many other scholars whose work has become essential to understanding privacy in the digital age. In particular, Helen Nissenbaum’s articulation of the “contextual integrity” of privacy is laying important groundwork for new conceptions of privacy protection. Julie E. Cohen calls for recognition of the social harms increasingly evident in the “biopolitical domain,” a space where personal information is acquired and exploited as raw materials for various types of marketplace activities. Oscar H. Gandy, Jr. identifies the inherent power imbalances of the “panoptic sort,” and offers a theoretical framework for social and policy interventions. These and other important contributions are not covered here, but will be elsewhere as my research continues.
Warren and Brandeis: The Right to Be Let Alone
In a Harvard Law Review article published in 1890, Samuel D. Warren, a prominent attorney, and Louis D. Brandeis, a future Justice of the U.S. Supreme Court, addressed the right to privacy in an earlier time of technological change. The innovation of instantaneous photography and the rise of competition among newspaper enterprises were converging to invade “the sacred precincts of private and domestic life,” leading to publication of “unauthorized portraits of private persons…and the evil of the invasion of privacy by the newspapers.” The authors opined that “the press is overstepping in every direction the obvious bounds of propriety and decency.” But while paparazzi photography and newspaper gossip might be considered free speech under the First Amendment, the courts had yet to consider a constitutional basis for protection from such practices under a legally tenable conception of privacy.
Warren and Brandeis open their argument by stipulating that “political, social, and economic changes entail the recognition of new rights, and the common law, in its eternal youth, grows to meet the demands of society.” They summarize the successive recognition of intangible property rights, protections from fear of injury, laws of nuisance, slander, libel, alienation of affection, and protection of trade secrets and trademarks. These and other new rights were established by civil law:
The intense intellectual and emotional life, and the heightening of sensations which came with the advance of civilization, made it clear to men that only a part of the pain, pleasure, and profit of life lay in physical things. Thoughts, emotions, and sensations demanded legal recognition, and the beautiful capacity for growth which characterizes the common law enabled the judges to afford the requisite protection, without the interposition of the legislature.
Warren and Brandeis underline the perceived growing intensity and complexity of the 19th century world and its assault on “solitude and privacy.” They regard “mental pain and duress” as more invasive than “mere bodily injury.” One senses in their argument a growing legal interest in the sanctity of a person’s dignity and interior life, in contrast to existing protections for harm to a person’s body or property. They write of a “general right to privacy to thoughts, emotions, and sensations,” and protection for the “inviolate personality.”
But how can courts assess violations of a person’s emotions, sensations, thoughts, and personality? Warren and Brandeis recognize the impossibility of recognizing the “particular nature” of such non-physical invasions. They conclude that enforcement in such matters is about recognition of privacy as part of “the more general right of the individual to be let alone.”
Warren and Brandeis offer additional considerations about what constitutes a violation of privacy that seem to fall short of a comprehensive legal standard, but their ideas continue to resonate in today’s world of digital information and commodification of personal data. Addressing instances of “wrongful publication,” meaning publication by a third party of a first party’s public statements or likeness without permission, they note that jurisdictional liability has been not primarily based on the ground of property but “upon the ground of an alleged breach of an implied contract or of a trust or confidence (emphasis added).” In other words, while there may have been a violation of intellectual property rights, there is another issue central to privacy: social norms. They find this conception in a number of previous court rulings, notably in Yovatt v. Winyard (1820), where the defendant obtained private information from an employer by eavesdropping. An injunction against the defendant was granted on the ground not of theft of intellectual property, but on “a breach of trust and confidence.” Warren and Brandeis argue for extending this conception more generally:
We must therefore conclude that the rights, so protected, whatever their exact nature, are not rights arising from contract or from special trust, but are rights as against the world (emphasis added)…The principle which protects personal writings and any other productions of the intellect or of the emotions, is the right to privacy.
Richard A. Posner: Privacy as a Right of Property
A professor law at the University of Chicago and respected legal scholar, Richard Posner has made privacy a central theme in much of his writing. He is primarily concerned with secrets and the withholding of information, and his conception of privacy is focused on the economic value of information and the costs of getting it. He does not address aspects of privacy that don’t pertain to financial gain or loss.
In a 1978 article published in the Georgia Law Review, Posner identifies both “privacy” and “prying” as economic goods with instrumental value. “Under this approach,” he writes, “people are assumed not to desire or value privacy or prying in themselves but to use these goods as inputs into the production of income or some other broad measure of utility or welfare.” He proceeds with an analysis of the economic value of privacy and prying where two parties wish to either conceal or acquire information.
Posner’s analysis is a straightforward endorsement of capitalistic market economics in the context of individual and corporate privacy. He cites the demand for protection of private information as rational part of any business relationship, as it creates “opportunities for gain by the demander.” The other side of Posner’s privacy coin is the desire by people to misrepresent themselves. He positions Warren and Brandeis’ concerns with a “right to be let alone” as merely a desire for protection from newspaper gossip columnists. He sees no harm in exposing the “personal lives of wealthy and successful people” and their pitfalls, as this information is “genuinely informational” and assists “ordinary people in making consumption, career, and other decisions.”
The core of Posner’s conception of privacy is property rights, the value of personal information, and the costs of disclosure. In his view, granting property rights to secrets provides incentive for production of socially-valuable information, such as a trade secret. “Shrewd bargainers” will conceal this information from potential buyers so as to increase their return on investment. But Posner also acknowledges the potential for nondisclosure to become fraud, and suggests that an important consideration in justifying concealment is the cost of creating the concealed information. If the investment was significant, so too would the “social costs of disclosure,” as disclosure would provide a disincentive to create more such valuable information.
What Posner fails to take into account is that there may be social value in information beyond the incentive to produce more information. Some types of information may yield a large return on investment for the producer, but an even larger social value for society. For example, a pharmaceutical company may invest in development of a vaccine for a highly contagious new virus, and by maintaining it as a trade secret gain substantial profits. Protecting the trade secret may provide incentive for the pharmaceutical company to continue producing needed new vaccines. But if keeping the trade secret results in limited vaccine production and distribution, the virus may infect vastly more people, resulting in widespread disease, mortality, and economic disruption. In such an instance, sharing the vaccine information could yield greater social value, potentially including for the pharmaceutical company. In a similar vein, some types of information may create negative social value for society. For example, protecting a trade secret for a new chemical weapon may result in higher profits for the manufacturer, and provide incentive to continue developing new chemical weapons. But the social costs are vastly greater for society in general if chemical weapons are actually used.
Posner’s analysis of privacy as property in a capitalistic economy rests on several very circumscribed or dubious assumptions about human nature. In answer to Warren and Brandeis, he claims “very few people want to be let alone. They want to manipulate the world around them by selective disclosure of facts about themselves.” By this logic the individual will invest in protecting discreditable personal information, thus increasing the costs for anyone seeking it, e.g. financial institutions, employers, social partners, etc. It is as if personal information is a trade secret, but protecting it provides no incentive for the individual to produce more. Secret personal information thus has no economic value to the person, and no claim to protection. With no recognizable value, according to Posner, “the economic case for legal protection to such information is no better than that for permitting fraud in the sale of goods.”
Given his conception of a legal right to privacy based on economic efficiency, Posner determines that “the law should generally accord private business information greater protection than it accords personal information.” Businessmen exploit their “superior knowledge and skills” to create secrets, which become property deserving of protection; the personal data of individuals has no economic value, therefore it cannot be property and generally deserves no privacy protection. Posner concludes “it may be doubted whether the kind of analysis that seeks to establish rights not derived from a calculation of costs and benefits is even applicable to the privacy area.”
Daniel J. Solove: A Pragmatic Approach to Conceptualizing Privacy
Daniel Solove is a research professor at the University of George Washington and a vocal advocate for digital privacy and security. In an article in the California Law Review published in 2002, he attempts to lay a philosophical foundation for a comprehensive and effective law of privacy. He notes the “shifting ground” under which existing privacy law shakily stands, and the failure of state and federal governments to conceptualize privacy in a way that accounts for what is at stake in our world of ubiquitous digital technology, surveillance by corporations and governments, and commodification of personal information. The article also provides a summary of discourse on conceptualizing privacy since Warren and Brandeis’ 1890 Harvard Law Review article, and on balance finds it “deeply dissatisfying.”
Solove then presents two innovative arguments: Firstly, that previous attempts to define privacy have erroneously attempted to isolate its “essential” or “core” characteristics. Drawing from Ludwig Wittgenstein’s notion of “family resemblances,” he argues that privacy is a set of related concepts with no single characteristic in common, but that draw from “a common pool of similar elements.” Much like an extended family shares certain DNA but many members may not much resemble each other, the diversity of privacy issues may make recognition difficult.
Solove’s second proposal is a “pragmatic approach to conceptualizing privacy” that recognizes “the contextual and dynamic nature of privacy.” Privacy, he argues, is contingent on “necessary and sufficient conditions,” which can only be discerned from “particular contexts rather than in the abstract” – “from the bottom up rather than the top down.” He reviews a range of previous conceptions of privacy, and argues that while they appear to be in conflict or disarray, they can be understood within a framework of six general headings:
1. The right to be alone – Samuel Warren and Louis Brandeis’s famous formulation for the right to privacy
2. Limited access to the self – the ability to shield oneself from unwanted access by others
3. Secrecy – the concealment of certain matters from others
4. Control over personal information – the ability to exercise control over information about oneself
5. Personhood – the protection of one’s personality, individuality, a dignity
6. Intimacy – control over, or limited access to, one’s intimate relationships or aspects or aspects of life
Within these categories, Solove seeks to conceptualize privacy in the context of what people normally do in their daily lives. Needless to say, our daily lives have changed in profound ways since 1890, not least due to new technologies and practices. “These practices are a product of our history and culture,” Solove says, “therefore, we should explore what it means for something to be private contextually by looking at particular practices.”
Solove credits the Warren and Brandeis for establishing a theory of privacy as an element of tort law, and initiating a century-long dialogue over protecting privacy. But he critiques “the right to be let alone” as both too broad, and insufficiently specific as to how privacy relates to other values such as free speech and law enforcement. “Being let alone does not inform us about matters in which we should be let alone,” and fails to provide practical guidance, especially in the digital information age.
Solove credits Richard Posner’s concept of privacy-as-secrecy as a subset of the general heading “limited access to the self.” But he criticizes Posner’s conception as far too narrow to account for contexts such as group privacy, or selective secrecy where people want to share information with certain other people but hide it with others. Solove does not address Posner’s argument for privacy as property or its implications for the economic value of business information over personal information. Instead he locates Posner’s concern with secrecy as a limited concern within the categories of privacy in Solove’s framework.
The scholarship on privacy reviewed here represents a few points on the broad spectrum of discussion about the nature of privacy and privacy law. That discussion has lasted from more than a century in the United States, and while most participants would agree that progress has been made, a consensus on the full meaning of privacy remains elusive. Legal protections for privacy remain vague in the U.S. and elsewhere, and subject to differing interpretations by governments and courts. But the privacy discussion is more active than ever, as innovations in technology and practices by private corporations and governments push across boundaries and social norms we once might have thought more solid. In an information environment rich with digital information, smart phones, social media, browser tracking, cloud computing, facial recognition, surveillance cameras, license plate readers, commercial data brokers, artificial intelligence, the Internet of Things, social and financial credit scores by governments and the financial industry, and a growing list of other technologies capable of capturing personal information for both good and ill, the ground continues to shift under our conceptualizations of privacy, past and present. Warren and Brandeis, Posner, and Solove help inform the privacy discussion, but the discussion will have to continue.