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The Right to Privacy: Personal Freedom in The Digital Age

Categories: Digital Era Freedom

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Words: 691 |

Published: Sep 16, 2023

Words: 691 | Pages: 2 | 4 min read

The significance of the right to privacy, historical development of the right to privacy, contemporary challenges, protecting the right to privacy, 1. individual autonomy:, 2. human dignity:, 3. democracy and free expression:, 1. data privacy:, 2. government surveillance:, 3. social media and cybersecurity:, 1. legal protections:, 2. technological solutions:, 3. digital literacy:, 4. ethical considerations:.

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Essay on Right To Privacy

Students are often asked to write an essay on Right To Privacy in their schools and colleges. And if you’re also looking for the same, we have created 100-word, 250-word, and 500-word essays on the topic.

Let’s take a look…

100 Words Essay on Right To Privacy

Introduction.

Privacy is a basic human right. It means keeping your personal life away from others. It is about having a space where you can feel safe and free. Your privacy includes things like your personal information, your belongings, and your body.

Importance of Privacy

Privacy is important for everyone. It helps us to be ourselves without fear. It allows us to think freely, make our own choices, and live our lives the way we want. Without privacy, we might feel watched and controlled, which can make us unhappy.

Privacy and Technology

Technology can sometimes hurt our privacy. For example, when we use the internet, our information can be collected and shared. This can be dangerous, as it can be used to harm us. So, it’s important to be careful online.

Privacy Laws

There are laws to protect our privacy. These laws stop others from looking into our private life without permission. They also punish those who break these rules. So, privacy laws are important for our safety and freedom.

250 Words Essay on Right To Privacy

What is the right to privacy.

The right to privacy is a human right that protects your personal information from being shared without your permission. It means you can keep your life private. It is like a shield that stops others from poking into your personal matters.

Privacy is important for many reasons. First, it allows you to be yourself without fear. You can express your thoughts, beliefs, and emotions freely. If privacy was not there, you might feel scared to be yourself. Second, it keeps your personal information safe. This is very important in today’s world where information can be misused.

Privacy and the Internet

The internet has made privacy more complex. When you use the internet, you share information like your name, age, and location. Some websites might even collect more information without you knowing. This can put your privacy at risk. So, it is important to be careful when you use the internet.

How to Protect Your Privacy

Protecting your privacy is not hard. You can do simple things like not sharing your personal information with strangers. Also, you can use tools that protect your privacy when you use the internet. These tools can stop websites from collecting your information.

In conclusion, the right to privacy is a very important right. It lets you be yourself and keeps your information safe. But with the internet, protecting your privacy can be tricky. So, it is important to be careful and use tools that can help protect your privacy.

500 Words Essay on Right To Privacy

Importance of the right to privacy.

The right to privacy is important for many reasons. First, it allows us to be ourselves without fear of judgment. We can think, speak, and act in ways that reflect our true selves when we know that we are safe from prying eyes. Second, it helps us maintain our dignity. When our private lives are exposed without our consent, it can make us feel embarrassed or ashamed. Finally, it promotes trust in relationships. When we know that our private conversations and actions will stay private, we are more likely to share our true feelings and thoughts with others.

Right to Privacy in the Digital Age

In today’s world, where we use computers and the internet for many things, the right to privacy has become even more important. When we use social media, online shopping, or email, we share a lot of personal information. If this information is not kept private, it can be used in ways we don’t want. For example, it can be used to steal our identity, or to target us with ads we don’t want to see. To protect our right to privacy in the digital age, we need to be careful about what information we share online, and we need to use tools and settings that help keep our information private.

Challenges to the Right to Privacy

In conclusion, the right to privacy is a valuable human right that allows us to live our lives freely and with dignity. In the digital age, this right is more important than ever, but it is also under greater threat. By understanding the importance of privacy and taking steps to protect it, we can ensure that we maintain control over our own lives and personal information.

That’s it! I hope the essay helped you.

Happy studying!

Right to Privacy Essay | Essay on Right to Privacy for Students and Children in English

February 13, 2024 by Prasanna

Right to Privacy Essay: Privacy is a fundamental right granted to every global citizen. It’s the basis of human dignity and freedom. The right to privacy is shown and acknowledged in all the major constitutions, and India is no different.

Some legal experts define privacy as a human right applicable to every human being by their existence. The right to privacy is determined from case to case. In this article, we will see India’s position on this matter.

You can also find more Essay Writing articles on events, persons, sports, technology and many more.

Long and Short Essays on Right to Privacy for Students and Kids in English

We provide children and students with essay samples on a long essay of 500 words and a short essay of 150 words on the topic “Right To Privacy” for reference.

Long Essay on Right to Privacy 500 Words in English

Long Essay on Right to Privacy is usually given to classes 7, 8, 9, and 10.

The concept of privacy can be traced back to ancient Hindu texts. In Hitopadesh, it says that certain issues (worship, sex, and family matters) should be protected from disclosure. So the concept of privacy is not new to our country. The Puttaswamy judgment deems that the right to privacy is protected as a fundamental constitutional right under Articles 14, 19, and 21 of India’s Constitution.

This was triggered by the concerns about surveillance worldwide because of Cambridge analytical and other scandals. Economic Survey also shows a data explosion led by the falling marginal cost of data. Privacy, as defined by the U.S. judiciary, is the right to be let alone. Experts now deem this definition of privacy as insufficient in a large interconnected world. Today due to the discovery of the internet and social media, everything is interconnected. The Supreme Court of India opined (in Ram Jethmalani vs. Union of India case.) that “it is important that human beings should be allowed domains of freedom that are free of public scrutiny unless they act in an unlawful manner.” This matter’s trigger is the government’s Aadhaar scheme, where personal details and data were collected to identify eligibility criteria for some government welfare schemes.

Few petitions were filed in the Supreme Court in 2015, stating the Aadhaar card policy a breach of privacy. The petitioners debated that Aadhaar enrolment was the path to a “totalitarian state” and an open invite for personal data leakage. The nine-judge bench, which was led by Chief Justice of India J.S Khehar, engages in an intense discussion for the first time with scholars and lawyers on whether or not privacy is a fundamental right in the Constitution. The dread expressed by the Supreme Court regarding the collection and use of data is risking personal information going into the grasp of private players and service providers. In this modern-day and age, where every minor data of ours is exposed in our digital devices and to the government, data protection has become a major issue. The court highlights the fact that “state is obliged to put a robust personal data protection mechanism in place in this digital age.”

Another clause to the right to privacy factor is the involuntary use of narco or lie detector tests during legal interrogations. This is an “intrusion” into a person’s “mental privacy.” Therefore in 2010, the Supreme Court held a judgment. Such tests on individuals from weaker sections of society unaware of their fundamental rights and unable to afford legal advice are being stripped of a fundamental right.

In India, the right to privacy has developed over a span of 60 years. The right to privacy is protected as an eccentric part of personal liberty under Article 21 and as a part of the freedom guaranteed by part III of the Constitution. After observing these cases, one might say that the Right to Privacy is related to an individual’s liberty, which leads to being recognized as a Right to Life.

Short Essay on Right to Privacy 150 Words in English

Short Essay on Right to Privacy is usually given to classes 1, 2, 3, 4, 5, and 6.

The right to privacy can be defined as choosing an individual where he/she chooses which parts of their lives; they have to disclose to society. In India, the right to privacy is to constrict the government and private actions that threaten citizens’ privacy. Privacy also extends to bodily integrity, autonomy, speech, and freedom to move or think. In the People’s Union for Civil Liberties vs. Union of India, Kharak Singh vs. the State of UP —- Supreme Court held that the right to privacy is a part of the right to protect life and personal liberty under Article 21.

Recently the focus on the right to privacy is based on the data vulnerability of the digital age. After the global Cambridge Analytica disclosure of 2018, the right to privacy has been a subject of international debate. Therefore people should be made aware of the technologies that use their personal information to ensure that they are well-informed that their privacy is at risk.

10 Lines on Right to Privacy in English

The Supreme Court of India has held privacy as a fundamental right under the Constitution of India.
The right to privacy will find a place under article 21, part III of the Constitution.
This will ensure the dignity of a person, as mentioned in India’s Preamble.
Without privacy, the citizens will be victims of brainwashing and propaganda.
Article12 of the Universal Declaration on Human Rights and Article17 of the International Covenant on Civil and Political Rights provides for the right of privacy.
India is rapidly developing into a digital economy, so cybersecurity and privacy have been an issue now, i.e., I.D. theft, fraud, illegal bank transfers, etc.
Huge multinationals are taking data about millions of Indians abroad.
Privacy consciousness is rather low in India compared to western countries.
Facebook-Cambridge Analytica scandal is the biggest privacy breach and digital data leak in recent history.
The right to privacy shall not be limited against the State but also against the private corporations which collect citizen data.

FAQ’s on Right to Privacy Essay

Question 1. What does privacy mean?

Answer: Broadly speaking, privacy is the right to be let alone or freedom from interference or intrusion.

Question 2. Is the right to privacy is a fundamental right?

Answer: On 24 August 2017, the Supreme Court of India declared privacy as a fundamental right protected under the Indian Constitution.

Question 3. Why privacy is a human right?

Answer: Privacy is a fundamental right, essential to autonomy and the protection of human dignity.

Question 4. What are the four types of invasion of privacy?

Answer: The four most common types of invasion of privacy– appropriation of name, intrusion upon seclusion, false light, and public disclosure of private facts.

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Originally published in 4 Harvard Law Review 193 (1890)

"It could be done only on principles of private justice, moral fitness, and public convenience, which, when applied to a new subject, make common law without a precedent; much more when received and approved by usage."

Willes, J., in Millar v. Taylor , 4 Burr, 2303, 2312.

That the individual shall have full protection in person and in property is a principle as old as the common law; but it has been found necessary from time to time to define anew the exact nature and extent of such protection. 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. Thus, in very early times, the law gave a remedy only for physical interference with life and property, for trespasses vi et armis . Then the "right to life" served only to protect the subject from battery in its various forms; liberty meant freedom from actual restraint; and the right to property secured to the individual his lands and his cattle. Later, there came a recognition of man's spiritual nature, of his feelings and his intellect. Gradually the scope of these legal rights broadened; and now the right to life has come to mean the right to enjoy life--the right to be let alone, the right to liberty secures the exercise of extensive civil privileges; and the term "property" has grown to comprise every form of possession-- intangible, as well as tangible.

Thus, with the recognition of the legal value of sensations, the protection against actual bodily injury was extended to prohibit mere attempts to do such injury; that is, the putting another in fear of such injury. From the action of battery grew that of assault. 1 Much later there came a qualified protection of the individual against offensive noises and odors, against dust and smoke, and excessive vibration. The law of nuisance was developed. 2 So regard for human emotions soon extended the scope of personal immunity beyond the body of the individual. His reputation, the standing among his fellow men, was considered and the law of slander and libel arose. 3 Man's family relations became a part of the legal conception of his life, and the alienation of a wife's affections was held remediable. 4 Occasionally the law halted--as in its refusal to recognize the intrusion by seduction upon the honor of the family. But even here the demands of society were met. A mean fiction, the action per quod servitium amisit , was resorted to, and by allowing damages for injury to the parents' feelings, an adequate remedy was ordinarily afforded. 5 Similar to the expansion of the right to life was the growth of the legal conception of property. From corporeal property arose the incorporeal rights issuing out of it; and then there opened the wide realm of intangible property, in the products and processes of the mind, 6 as works of literature and art, 7 good-will, 8 trade secrets, and trade-marks. 9

This development of the law was inevitable. The intense intellectual and emotional life, and the heightening of sensations which came with the advance of civilization, made it clear to man 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.

Recent inventions and business methods call attention to the next step which must be taken for the protection of the person, and for securing to the individual what Judge Cooley calls the right "to be let alone." 10 Instantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life; and numerous mechanical devices threaten to make good the prediction that "what is whispered in the closet shall be proclaimed from the house-tops." For years there has been a feeling that the law must afford some remedy for the unauthorized circulation of portraits of private persons; 11 and the evil of the invasion of privacy by the newspapers, long keenly felt, has been but recently discussed by an able writer. 12 The alleged facts of a somewhat notorious case brought before an inferior tribunal in New York a few months ago, 13 directly involved the consideration of the right of circulating portraits; and the question whether our law will recognize and protect the right to privacy in this and in other respects must soon come before our courts for consideration.

Of the desirability--indeed of the necessity--of some such protection, there can, it is believed, be no doubt. The press is overstepping in every direction the obvious bounds of propriety and of decency. Gossip is no longer the resource of the idle and of the vicious, but has become a trade, which is pursued with industry as well as effrontery. To satisfy a prurient taste the details of sexual relations are spread broadcast in the columns of the daily papers. To occupy the indolent, column upon column is filled with idle gossip, which can only be procured by intrusion upon the domestic circle. The intensity and complexity of life, attendant upon advancing civilization, have rendered necessary some retreat from the world, and man, under the refining influence of culture, has become more sensitive to publicity, so that solitude and privacy have become more essential to the individual; but modern enterprise and invention have, through invasions upon his privacy, subjected him to mental pain and distress, far greater than could be inflicted by mere bodily injury. Nor is the harm wrought by such invasions confined to the suffering of those who may be made the subjects of journalistic or other enterprise. In this, as in other branches of commerce, the supply creates the demand. Each crop of unseemly gossip, thus harvested, becomes the seed of more, and, in direct proportion to its circulation, results in a lowering of social standards and of morality. Even gossip apparently harmless, when widely and persistently circulated, is potent for evil. It both belittles and perverts. It belittles by inverting the relative importance of things, thus dwarfing the thoughts and aspirations of a people. When personal gossip attains the dignity of print, and crowds the space available for matters of real interest to the community, what wonder that the ignorant and thoughtless mistake its relative importance. Easy of comprehension, appealing to that weak side of human nature which is never wholly cast down by the misfortunes and frailties of our neighbors, no one can be surprised that it usurps the place of interest in brains capable of other things. Triviality destroys at once robustness of thought and delicacy of feeling. No enthusiasm can flourish, no generous impulse can survive under its blighting influence.

It is our purpose to consider whether the existing law affords a principle which can properly be invoked to protect the privacy of the individual; and, if it does, what the nature and extent of such protection is.

Owing to the nature of the instruments by which privacy is invaded, the injury inflicted bears a superficial resemblance to the wrongs dealt with by the law of slander and of libel, while a legal remedy for such injury seems to involve the treatment of mere wounded feelings, as a substantive cause of action. The principle on which the law of defamation rests, covers, however, a radically different class of effects from those for which attention is now asked. It deals only with damage to reputation, with the injury done to the individual in his external relations to the community, by lowering him in the estimation of his fellows. The matter published of him, however widely circulated, and however unsuited to publicity, must, in order to be actionable, have a direct tendency to injure him in his intercourse with others, and even if in writing or in print, must subject him to the hatred, ridicule, or contempt of his fellow men--the effect of the publication upon his estimate of himself and upon his own feelings not forming an essential element in the cause of action. In short, the wrongs and correlative rights recognized by the law of slander and libel are in their nature material rather than spiritual. That branch of the law simply extends the protection surrounding physical property to certain of the conditions necessary or helpful to worldly prosperity. On the other hand, our law recognizes no principle upon which compensation can be granted for mere injury to the feelings. However painful the mental effects upon another of an act, though purely wanton or even malicious, yet if the act itself is otherwise lawful, the suffering inflicted is damnum absque injuria . Injury of feelings may indeed be taken account of, 14 in ascertaining the amount of damages when attending what is recognized as a legal injury; but our system, unlike the Roman law, does not afford a remedy even for mental suffering which results from mere contumely and insult, from an intentional and unwarranted violation of the "honor" of another. 15

It is not, however, necessary, in order to sustain the view that the common law recognizes and upholds a principle applicable to cases of invasion of privacy, to invoke the analogy, which is but superficial, to injuries sustained, either by an attack upon reputation or by what the civilians called a violation of honor; for the legal doctrines relating to infractions of what is ordinarily termed the common-law right to intellectual and artistic property are, it is believed, but instances and applications of a general right to privacy, which properly understood afford a remedy for the evils under consideration.

The common law secures to each individual the right of determining, ordinarily, to what extent his thoughts, sentiments, and emotions shall be communicated to others. 16 Under our system of government, he can never be compelled to express them (except when upon the witness stand); and even if he has chosen to give them expression, he generally retains the power to fix the limits of the publicity which shall be given them. The existence of this right does not depend upon the particular method of expression adopted. It is immaterial whether it be by word 17 or by signs, 18 in painting, 19 by sculpture, or in music. 20 Neither does the existence of the right depend upon the nature or value of the thought or emotion, nor upon the excellence of the means of expression. 21 The same protection is accorded to a casual letter or an entry in a diary and to the most valuable poem or essay, to a botch or daub and to a masterpiece. In every such case the individual is entitled to decide whether that which is his shall be given to the public. 22 No other has the right to publish his productions in any form, without his consent. This right is wholly independent of the material on which, or the means by which, the thought, sentiment, or emotion is expressed. It may exist independently of any corporeal being, as in words spoken, a song sung, a drama acted. Or if expressed on any material, as a poem in writing, the author may have parted with the paper, without forfeiting any proprietary right in the composition itself. The right is lost only when the author himself communicates his production to the public--in other words, publishes it. 23 It is entirely independent of the copyright laws, and their extension into the domain of art. The aim of those statutes is to secure to the author, composer, or artist the entire profits arising from publication; but the common-law protection enables him to control absolutely the act of publication, and in the exercise of his own discretion, to decide whether there shall be any publication at all. 24 The statutory right is of no value, unless there is a publication; the common-law right is lost as soon as there is a publication.

What is the nature, the basis, of this right to prevent the publication of manuscripts or works of art? It is stated to be the enforcement of a right of property; 25 and no difficulty arises in accepting this view, so long as we have only to deal with the reproduction of literary and artistic compositions. They certainly possess many of the attributes of ordinary property: they are transferable; they have a value; and publication or reproduction is a use by which that value is realized. But where the value of the production is found not in the right to take the profits arising from publication, but in the peace of mind or the relief afforded by the ability to prevent any publication at all, it is difficult to regard the right as one of property, in the common acceptation of that term. A man records in a letter to his son, or in his diary, that he did not dine with his wife on a certain day. No one into whose hands those papers fall could publish them to the world, even if possession of the documents had been obtained rightfully and the prohibition would not be confined to the publication of a copy of the letter itself, or of the diary entry; the restraint extends also to a publication of the contents. What is the thing which is protected? Surely, not the intellectual act of recording the fact that the husband did not dine with his wife, but that fact itself. It is not the intellectual product, but the domestic occurrence. A man writes a dozen letters to different people. No person would be permitted to publish a list of the letters written. If the letters or the contents of the diary were protected as literary compositions, the scope of the protection afforded should be the same secured to a published writing under the copyright law. But the copyright law would not prevent an enumeration of the letters, or the publication of some of the facts contained therein. The copyright of a series of paintings or etchings would prevent a reproduction of the paintings as pictures; but it would not prevent a publication of a list or even a description of them. 26 Yet in the famous case of Prince Albert v . Strange the court held that the common-law rule prohibited not merely the reproduction of the etchings which the plaintiff and Queen Victoria had made for their own pleasure, but also "'the publishing (at least by printing or writing) though not by copy or resemblance, a description of them, whether more or less limited or summary, whether in the form of a catalogue or otherwise." 27 Likewise, an unpublished collection of news possessing no element of a literary nature is protected from piracy. 28

That this protection cannot rest upon the right to literary or artistic property in any exact sense, appears the more clearly when the subject-matter for which protection is invoked is not even in the form of intellectual property, but has the attributes of ordinary tangible property. Suppose a man has a collection of gems or curiosities which he keeps private: it would hardly be contended that any person could publish a catalogue of them, and yet the articles enumerated are certainly not intellectual property in the legal sense, any more than a collection of stoves or of chairs. 29

The belief that the idea of property in its narrow sense was the basis of the protection of unpublished manuscripts led an able court to refuse, in several cases, injunctions against the publication of private letters, on the ground that "letters not possessing the attributes of literary compositions are not property entitled to protection"; and that it was "evident the plaintiff could not have considered the letters as of any value whatever as literary productions, for a letter cannot be considered of value to the author which he never would consent to have published." 30 But these decisions have not been followed, 31 and it may now be considered settled that the protection afforded by the common law to the author of any writing is entirely independent of its pecuniary value, its intrinsic merits, or of any intention to publish the same, and, of course, also, wholly independent of the material, if any, upon which, or the mode in which, the thought or sentiment was expressed.

Although the courts have asserted that they rested their decisions on the narrow grounds of protection to property, yet there are recognitions of a more liberal doctrine. Thus in the case of Prince Albert v. Strange , already referred to, the opinions both of the Vice-Chancellor and of the Lord Chancellor, on appeal, show a more or less clearly defined perception of a principle broader than those which were mainly discussed, and on which they both placed their chief reliance. Vice-Chancellor Knight Bruce referred to publishing of a man that he had "written to particular persons or on particular subjects" as an instance of possibly injurious disclosures as to private matters, that the courts would in a proper case prevent; yet it is difficult to perceive how, in such a case, any right of property, in the narrow sense, would be drawn in questions, or why, if such a publication would be restrained when it threatened to expose the victim not merely to sarcasm, but to ruin, it should not equally be enjoined, if it threatened to embitter his life. To deprive a man of the potential profits to be realized by publishing a catalogue of his gems cannot per se be a wrong to him. The possibility of future profits is not a right of property which the law ordinarily recognizes; it must, therefore, be an infraction of other rights which constitutes the wrongful act, and that infraction is equally wrongful, whether its results are to forestall the profits that the individual himself might secure by giving the matter a publicity obnoxious to him, or to gain an advantage at the expense of his mental pain and suffering. If the fiction of property in a narrow sense must be preserved, it is still true that the end accomplished by the gossip-monger is attained by the use of that which is another's, the facts relating to his private life, which he has seen fit to keep private. Lord Cottenham stated that a man "is entitled to be protected in the exclusive use and enjoyment of that which is exclusively his," and cited with approval the opinion of Lord Eldon, as reported in a manuscript note of the case of Wyatt v . Wilson, in 1820, respecting an engraving of George the Third during his illness, to the effect that "if one of the late king's physicians had kept a diary of what he hear and saw, the court would not, in the king's lifetime, have permitted him to print and publish it"; and Lord Cottenham declared, in respect to the acts of the defendants in the case before him, that "privacy is the right invaded." But if privacy is once recognized as a right entitled to legal protection, the interposition of the courts cannot depend on the particular nature of the injuries resulting.

These considerations lead to the conclusion that the protection afforded to thoughts, sentiments, and emotions, expressed through the medium of writing or of the arts, so far as it consists in preventing publication, is merely an instance of the enforcement of the more general right of the individual to be let alone. It is like the right not to be assaulted or beaten, the right not to be imprisoned, the right not to be maliciously prosecuted, the right not to be defamed. In each of these rights, as indeed in all other rights recognized by the law, there inheres the quality of being owned or possessed--and (as that is the distinguishing attribute of property) there may be some propriety in speaking of those rights as property. But, obviously, they bear little resemblance to what is ordinarily comprehended under that term. The principle which protects personal writings and all other personal productions, not against theft and physical appropriation, but against publication in any form, is in reality not the principle of private property, but that of an inviolate personality. 32

If we are correct in this conclusion, the existing law affords a principle which may be invoked to protect the privacy of the individual from invasion either by the too enterprising press, the photographer, or the possessor of any other modern device for recording or reproducing scenes or sounds. For the protection afforded is not confined by the authorities to those cases where any particular medium or form of expression has been adopted, nor to products of the intellect. The same protection is afforded to emotions and sensations expressed in a musical composition or other work of art as to a literary composition; and words spoken, a pantomime acted, a sonata performed, is no less entitled to protection than if each had been reduced to writing. The circumstance that a thought or emotion has been recorded in a permanent form renders its identification easier, and hence may be important from the point of view of evidence, but it has no significance as a matter of substantive right. If, then, the decisions indicate a general right to privacy for thoughts, emotions, and sensations, these should receive the same protection, whether expressed in writing, or in conduct, in conversation, in attitudes, or in facial expression.

It may be urged that a distinction should be taken between the deliberate expression of thoughts and emotions in literary or artistic compositions and the casual and often involuntary expression given to them in the ordinary conduct of life. In other words, it may be contended that the protection afforded is granted to the conscious products of labor, perhaps as an encouragement effort. 33 This contention, however plausible, has, in fact, little to recommend it. If the amount of labor involved be adopted as the test, we might well find that the effort to conduct one's self properly in business and in domestic relations had been far greater than that involved in painting a picture or writing a book; one would find that it was far easier to express lofty sentiments in a diary than in the conduct of a noble life. If the test of deliberateness of the act be adopted, much casual correspondence which is now accorded full protection would be excluded from the beneficent operation of existing rules. After the decisions denying the distinction attempted to be made between those literary productions which it was intended to publish and those which it was not, all considerations of the amount of labor involved, the degree of deliberation, the value of the product, and the intention of publishing must be abandoned, and no basis is discerned upon which the right to restrain publication and reproduction of such so-called literary and artistic works can be rested, except the right to privacy, as a part of the more general right to the immunity of the person--the right to one's personality.

It should be stated that, in some instances where protection has been afforded against wrongful publication, the jurisdiction has been asserted, not on the ground of property, or at least not wholly on that ground, but upon the ground of an alleged breach of an implied contract or of a trust or confidence.

Thus, in Abernethy v. Hutchinson , 3 L. J. Ch. 209 (1825), where the plaintiff, a distinguished surgeon, sought to restrain the publication in the Lancet of unpublished lectures which he had delivered at St. Bartholomew's Hospital in London, Lord Eldon doubted whether there could be property in lectures which had not been reduced to writing, but granted the injunction on the ground of breach of confidence, holding "that when persons were admitted as pupils or otherwise, to hear these lectures, although they were orally delivered, and although the parties might go to the extent, if they were able to do so, of putting down the whole by means of shorthand, yet they could do that only for the purposes of their own information, and could not publish, for profit, that which they had not obtained the right of selling."

In Prince Albert v. Strange , 1 McN. & G. 25 (1849), Lord Cottenham, on appeal, while recognizing a right of property in the etchings which of itself would justify the issuance of the injunction, stated, after discussing the evidence, that he was bound to assume that the possession of the etchings by the defendant had "its foundation in a breach of trust, confidence, or contract," and that upon such ground also the plaintiff's title to the injunction was fully sustained.

In Tuck v. Priester , 19 Q. B. D. 639 (1887), the plaintiffs were owners of a picture, and employed the defendant to make a certain number of copies. He did so, and made also a number of other copies for himself, and offered them for sale in England at a lower price. Subsequently, the plaintiffs registered their copyright in the picture, and then brought suit for an injunction and damages. The Lords Justices differed as to the application of the copyright acts to the case, but held unanimously that independently of those acts, the plaintiffs were entitled to an injunction and damages for breach of contract.

In Pollard v. Photographic Co. , 40 Ch. Div. 345 (1888), a photographer who had taken a lady's photograph under the ordinary circumstances was restrained from exhibiting it, and also from selling copies of it, on the ground that it was a breach of an implied term in the contract, and also that it was a breach of confidence. Mr. Justice North interjected in the argument of the plaintiff's counsel the inquiry: "Do you dispute that if the negative likeness were taken on the sly, the person who took it might exhibit copies?" and counsel for the plaintiff answered: "In that case there would be no trust or consideration to support a contract." Later, the defendant's counsel argued that "a person has no property in his own features; short of doing what is libellous or otherwise illegal, there is no restriction on the photographer's using his negative." But the court, while expressly finding a breach of contract and of trust sufficient to justify its interposition, still seems to have felt the necessity of resting the decision also upon a right of property, 34 in order to bring it within the line of those cases which were relied upon as precedents. 35

This process of implying a term in a contract, or of implying a trust (particularly where the contract is written, and where there is no established usage or custom), is nothing more nor less than a judicial declaration that public morality, private justice, and general convenience demand the recognition of such a rule, and that the publication under similar circumstances would be considered an intolerable abuse. So long as these circumstances happen to present a contract upon which such a term can be engrafted by the judicial mind, or to supply relations upon which a trust or confidence can be erected, there may be no objection to working out the desired protection through the doctrines of contract or of trust. But the court can hardly stop there. The narrower doctrine may have satisfied the demands of society at a time when the abuse to be guarded against could rarely have arisen without violating a contract or a special confidence; but now that modern devices afford abundant opportunities for the perpetration of such wrongs without any participation by the injured party, the protection granted by the law must be placed upon a broader foundation. While, for instance, the state of the photographic art was such that one's picture could seldom taken without his consciously "sitting" for the purpose, the law of contract or of trust might afford the prudent man sufficient safeguards against the improper circulation of his portrait; but since the latest advances in photographic art have rendered it possible to take pictures surreptitiously, the doctrines of contract and of trust are inadequate to support the required protection, and the law of tort must be resorted to. The right of property in its widest sense, including all possession, including all rights and privileges, and hence embracing the right to an inviolate personality, affords alone that broad basis upon which the protection which the individual demands can be rested.

Thus, the courts, in searching for some principle upon which the publication of private letters could be enjoined, naturally came upon the ideas of a breach of confidence, and of an implied contract; but it required little consideration to discern that this doctrine could not afford all the protection required, since it would not support the court in granting a remedy against a stranger; and so the theory of property in the contents of letters was adopted. 36 Indeed, it is difficult to conceive on what theory of the law the casual recipient of a letter, who proceeds to publish it, is guilty of a breach of contract, express or implied, or of any breach of trust, in the ordinary acceptation of that term. Suppose a letter has been addressed to him without his solicitation. He opens it, and reads. Surely, he has not made any contract; he has not accepted any trust. He cannot, by opening and reading the letter, have come under any obligation save what the law declares; and, however expressed, that obligation is simply to observe the legal right of the sender, whatever it may be, and whether it be called his right of property in the contents of the letter, or his right to privacy. 37

A similar groping for the principle upon which a wrongful publication can be enjoined is found in the law of trade secrets. There, injunctions have generally been granted on the theory of a breach of contract, or of an abuse of confidence. 38 It would, of course, rarely happen that anyone would be in the possession of a secret unless confidence had been reposed in him. But can it be supposed that the court would hesitate to grant relief against one who had obtained his knowledge lay an ordinary trespass--for instance, by wrongfully looking into a book in which the secret was recorded, or by eavesdropping? Indeed, in Yovatt v. Winyard , 1 J. & W. 394 (1820), where an injunction was granted against making any use of or communicating certain recipes for veterinary medicine, it appeared that the defendant, while in the plaintiff's employ, had surreptitiously got access to his book of recipes, and copied them. Lord Eldon "granted the injunction, upon the ground of there having been a breach of trust and confidence"; but it would seem to be difficult to draw any sound legal distinction between such a case and one where a mere stranger wrongfully obtained access to the book. 39

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; and, as above stated, the principle which has been applied to protect these rights is in reality not the principle of private property, unless that word be used in an extended and unusual sense. The principle which protects personal writings and any other productions of the intellect or of the emotions, is the right to privacy, and the law has no new principle to formulate when it extends this protection to the personal appearance, sayings, acts, and to personal relations, domestic or otherwise. 40

If the invasion of privacy constitutes a legal injuria , the elements for demanding redress exist, since already the value of mental suffering, caused by an act wrongful in itself, is recognized as a basis for compensation.

The right of one who has remained a private individual, to prevent his public portraiture, presents the simplest case for such extension; the right to protect one's self from pen portraiture, from a discussion by the press of one's private affairs, would be a more important and far-reaching one. If casual and unimportant statements in a letter, if handiwork, however inartistic and valueless, if possessions of all sorts are protected not only against reproduction, but against description and enumeration, how much more should the acts and sayings of a man in his social and domestic relations be guarded from ruthless publicity. If you may not reproduce a woman's face photographically without her consent, how much less should be tolerated the reproduction of her face, her form, and her actions, by graphic descriptions colored to suit a gross and depraved imagination.

The right to privacy, limited as such right must necessarily be, has already found expression in the law of France. 41

It remains to consider what are the limitations of this right to privacy, and what remedies may be granted for the enforcement of the right. To determine in advance of experience the exact line at which the dignity and convenience of the individual must yield to the demands of the public welfare or of private justice would be a difficult task; but the more general rules are furnished by the legal analogies already developed in the law of slander and libel, and in the law of literary and artistic property.

1. The right to privacy does not prohibit any publication of matter which is of public or general interest.

In determining the scope of this rule, aid would be afforded by the analogy, in the law of libel and slander, of cases which deal with the qualified privilege of comment and criticism on matters of public and general interest. 42 There are of course difficulties in applying such a rule; but they are inherent in the subject-matter, and are certainly no greater than those which exist in many other branches of the law-- for instance, in that large class of cases in which the reasonableness or unreasonableness of an act is made the test of liability. The design of the law must be to protect those persons with whose affairs the community has no legitimate concern, from being dragged into an undesirable and undesired publicity and to protect all persons, whatsoever their position or station, from having matters which they may properly prefer to keep private, made public against their will. It is the unwarranted invasion of individual privacy which is reprehended, and to be, so far as possible, prevented. The distinction, however, noted in the above statement is obvious and fundamental. There are persons who may reasonably claim as a right, protection from the notoriety entailed by being made the victims of journalistic enterprise. There are others who, in varying degrees, have renounced the right to live their lives screened from public observation. Matters which men of the first class may justly contend concern themselves alone, may in those of the second be the subject of legitimate interest to their fellow citizens. Peculiarities of manner and person, which in the ordinary individual should be free from comment, may acquire a public importance, if found in a candidate for political office. Some further discrimination is necessary, therefore, than to class facts or deeds as public or private according to a standard to be applied to the fact or deed per se . To publish of a modest and retiring individual that he suffers from an impediment in his speech or that he cannot spell correctly, is an unwarranted, if not an unexampled, infringement of his rights, while to state and comment on the same characteristics found in a would-be congressman could not be regarded as beyond the pale of propriety.

The general object in view is to protect the privacy of private life, and to whatever degree and in whatever connection a man's life has ceased to be private, before the publication under consideration has been made, to that extent the protection is to be withdrawn. 43 Since, then, the propriety of publishing the very same facts may depend wholly upon the person concerning whom they are published, no fixed formula can be used to prohibit obnoxious publications. Any rule of liability adopted must have in it an elasticity which shall take account of the varying circumstances of each case--a necessity which unfortunately renders such a doctrine not only more difficult of application, but also to a certain extent uncertain in its operation and easily rendered abortive. Besides, it is only the more flagrant breaches of decency and propriety that could in practice be reached, and it is not perhaps desirable even to attempt to repress everything which the nicest taste and keenest sense of the respect due to private life would condemn.

In general, then, the matters of which the publication should be repressed may be described as those which concern the private life, habits, acts, and relations of an individual, and have no legitimate connection with his fitness for a public office which he seeks or for which he is suggested, or for any public quasi-public position which he seeks or for which he is suggested, and have no legitimate relation to or bearing upon any act done by him in a public or quasi-public capacity. The foregoing is not designed as a wholly accurate or exhaustive definition, since that which must ultimately in a vast number of cases become a question of individual judgment and opinion is incapable of such definition; but it is an attempt to indicate broadly the class of matters referred to. Some things all men alike are entitled to keep from popular curiosity, whether in public life or not, while others are only private because the persons concerned have not assumed a position which makes their doings legitimate matters of public investigation. 44

2. The right to privacy does not prohibit the communication of any matter, though in its nature private, when the publication is made under circumstances which would render it a privileged communication according to the law of slander and libel.

Under this rule, the right to privacy is not invaded by any publication made in a court of justice, in legislative bodies, or the committees of those bodies; in municipal assemblies, or the committee of such assemblies, or practically by any communication made in airy other public body, municipal or parochial, or in any body quasi-public, like the large voluntary associations formed for almost every purpose of benevolence, business, or other general interest; and (at least in many jurisdictions) reports of any such proceedings would in some measure be accorded a like privilege. 45 Nor would the rule prohibit any publication made by one in the discharge of some public or private duty, whether legal or moral, or in conduct of one's own affairs, in matters where his own interest is concerned. 46

3. The law would probably not grant any redress for the invasion of privacy by oral publication in the absence of special damage.

The same reasons exist for distinguishing between oral and written publications of private matters, as is afforded in the law of defamation by the restricted liability for slander as compared with the liability for libel. 47 The injury resulting from such oral communications would ordinarily be so trifling that the law might well, in the interest of free speech, disregard it altogether. 48

4. The right to privacy ceases upon the publication of the facts by the individual, or with his consent.

This is but another application of the rule which has become familiar in the law of literary and artistic property. The cases there decided established also what should be deemed a publication--the important principle in this connection being that a private communication or circulation for a restricted purpose is not a publication within the meaning of the law. 49

5. The truth of the matter published does not afford a defense.

Obviously this branch of the law should have no concern with the truth or falsehood of the matters published. It is not for injury to the individual's character that redress or prevention is sought, but for injury to the right of privacy. For the former, the law of slander and libel provides perhaps a sufficient safeguard. The latter implies the right not merely to prevent inaccurate portrayal of private life, but to prevent its being depicted at all. 50

6. The absence of "malice" in the publisher does not afford a defense.

Personal ill-will is not an ingredient of the offense, any more than in an ordinary case of trespass to person or to property. Such malice is never necessary to be shown in an actions for libel or slander at common law, except in rebuttal of some defense, e.g. , that the occasion rendered the communication privileged, or, under the statutes in this state and elsewhere, that the statement complained of was true. The invasion of the privacy that is to be protected is casually complete and equally injurious, whether the motives by which the speaker or writer was actuated are, taken by themselves, culpable or not; just as the damage to character, and to some extent the tendency to provoke a breach of the peace, is equally the result of defamation without regard to the motives leading to its publication. Viewed as a wrong to the individual, this rule is the same pervading the whole law of torts, by which one is held responsible for his intentional acts, even though they are committed with no sinister intent; and viewed as a wrong to society, it is the same principle adopted in a large category of statutory offenses.

The remedies for an invasion of the right of privacy are also suggested by those administered in the law of defamation, and in the law of literary and artistic property, namely:--

1. An action of tort for damages in all cases. 51 Even in the absence of special damages, substantial compensation could be allowed for injury to feelings as in the action of slander and libel.

2. An injunction, in perhaps a very limited class of cases. 52

It would doubtless be desirable that the privacy of the individual should receive the added protection of the criminal law, but for this, legislation would be required. 53 Perhaps it would be deemed proper to bring the criminal liability for such publication within narrower limits; but that the community has an interest in preventing such invasions of privacy, sufficiently strong to justify the introduction of such a remedy, cannot be doubted. Still, the protection of society must come mainly through a recognition of the rights of the individual. Each man is responsible for his own acts and omissions only. If he condones what he reprobates, with a weapon at hand equal to his defense, he is responsible for the results. If he resists, public opinion will rally to his support. Has he then such a weapon? It is believed that the common law provides him with one, forged in the slow fire of the centuries, and today fitly tempered to his hand. The common law has always recognized a man's house as his castle, impregnable, often even to its own officers engaged in the execution of its commands. Shall the courts thus close the front entrance to constituted authority, and open wide the back door to idle or prurient curiosity?

Samuel D. Warren, Louis D. Brandeis

Boston, December, 1890.

1 . Year Book, Lib. Ass. , folio 99, pl. 60 (1348 or 1349), appears to be the first reported case where damages were recovered for a civil assault.

2 . These nuisances are technically injuries to property; but the recognition of the right to have property free from interference by such nuisances involves also a recognition of the value of human sensations.

3 . Year Book, Lib. Ass., folio 177, pl. 19 (1356), (2 Finl. Reeves Eng. Law , 395) seems to be the earliest reported case of an action for slander.

4. Winsmore v. Greenbank, Willes, 577 (1745).

5. Loss of service is the gist of the action; but it has been said that "we are not aware of any reported case brought by a parent where the value of such services was held to be the measure of damages." Cassoday, J., in Lavery v. Crooke , 52 Wis. 612, 623 (1881). First the fiction of constructive service was invented; Martin v. Payne , 9 John. 387 (1912). Then the feelings of the parent, the dishonor to himself and his family, were accepted as the most important element of damage. Bedford v. McKowl , 3 Esp. 119 (1800); Andrews v. Askey , 8 C. & P. 7 (1837); Phillips v. Hoyle , 4 Gray 568 (1855); Phelin v. Kenderdine , 20 Pa. St. 354 (1853). The allowance of these damages would seem to be a recognition that the invasion upon the honor of the family is an injury to the parent's person, for ordinarily mere injury to parental feelings is not an element of damage, e.g., the suffering of the parent in case of physical injury to the child. Flemington v. Smithers , 2 C. & P. 292 (1827); Black v. Carrolton R.R. Co. , 10 La.Ann. 33 (1855); Covington Street Ry. Co. v. Packer , 9 Bush, 455 (1872).

6. "The notion of Mr. Justice Yates that nothing is property which cannot be earmarked and recovered in detinue or trover may be true in an early stage of society, when property is in its simple form and the remedies for violation of it also simple, but is not true in a more civilized state, when the relation of life and the interests arising therefrom are complicated." Erle, J., in J efferys v. Boosey , 4 H.L.C. 815, 869 (1845).

7. Copyright appears to have been first recognized as a species of private property in England in 1558. Drone on Copyright 54, 61.

8. Gibblett v . Read, 9 Mod. 459 (1743), is probably the first recognition of goodwill as property.

9. Hogg v. Kirby , 8 Ves. 215 (1803). As late as 1742, Lord Hardwicke refused to treat a trademark as property for infringement upon which an injunction could be granted. Blanchard v. Hill , 2 Atk. 484.

10. Cooley on Torts , 2d ed., p. 29.

11. 8 Amer. Law Reg . N.S. 1 (1869); 12 Wash. Law Rep . 353 (1884); 24 Sol. J. & Rep . 4 (1879).

12. Scribner's Magazine , July, 1890. "The Rights of the Citizen: to His Reputation," by E. L. Godkin, Esq. pp. 65, 67.

13. Marion Manola v. Stevens & Myers , N.Y.Supreme Court, New York Times of June 15, 18, 21, 1890. There, the complainant alleged that, while she was playing in the Broadway Theatre, in a role which required her appearance in tights, she was, by means of a flashlight, photographed surreptitiously and without her consent, from one of the boxes, by defendant Stevens, the manager of the "Castle in the Air" company, and defendant Myers, a photographer, and prayed that the defendants might be restrained from making use of the photograph taken. A preliminary injunction issued ex parte , and a time was set for argument of the motion that the injunction should be made permanent, but no one then appeared in opposition.

14. Though the legal value of "feelings" is now generally recognized, distinctions have been drawn between the several classes of cases in which compensation may or may not be recovered. Thus, the fright occasioned by an assault constitutes a cause of action, but fright occasioned by negligence does not. So fright coupled with bodily injury affords a foundation for enhanced damages; but, ordinarily, fright unattended by bodily injury cannot be relied upon as an element of damages, even where a valid cause of action exists, as in trespass quare clausum fregit . Wyman v. Leavitt , 71 Me. 227; Canning v. Williamstown , 1 Cush. 451. The allowance of damages for injury to the parents' feelings, in case of seduction, abduction of a child (Stowe v . Heywood, 7 All. 118), or removal of the corpse of child from a burial-ground ( Meagher v. Driscoll , 99 Mass. 281), are said to be exceptions to a general rule. On the other hand, injury to feelings is a recognized element of damages in actions of slander and libel, and of malicious prosecution. These distinctions between the cases, where injury to feelings does and where it does not constitute a cause of action or legal element of damages, are not logical, but doubtless serve well as practical rules. It will, it is believed, be found, upon examination of the authorities, that wherever substantial mental suffering would be the natural and probable result of the act, there compensation for injury to feelings has been allowed, and that where no mental suffering would ordinarily result, or if resulting, would naturally be but trifling, and, being unaccompanied by visible signs of injury, would afford a wide scope for imaginative ills, there damages have been disallowed. The decisions on this subject illustrate well the subjection in our law of logic to common-sense.

15. "Injuria, in the narrower sense, is every intentional and illegal violation of honour, i.e. , the whole personality of another." "Now an outrage is committed not only when a man shall be struck with the fist, say, or with a club, or even flogged, but also if abusive language has been used to one." Salkowski, Roman Law , p. 668 and p. 669, n. 2.

16. "It is certain every man has a right to keep his own sentiments, if he pleases. He has certainly a right to judge whether he will make them public, or commit them only to the sight of his friends." Yates, J., in Millar v. Taylor , 4 Burr. 2303, 2379 (1769).

17. Nichols v. Pitman , 26 Ch. D. 374 (1884).

18. Lee v. Simpson , 3 C.B. 871, 881; Daly v. Palmer , 6 Blatchf. 256.

19. Turner v. Robinson , 10 Ir. Ch. 121; S. C. ib. 510.

20. Drone on Copyright , 102.

21. "Assuming the law to be so, what is its foundation in this respect? It is not, I conceive, referable to any consideration peculiarly literary. Those with whom our common law originated had not probably among their many merits that of being patrons of letters; but they knew the duty and necessity of protecting property, and with that general object laid down rules providently expansive -- rules capable of adapting themselves to the various forms and modes of property which peace and cultivation might discover and introduce.

"The produce of mental labor, thoughts and sentiments, recorded and preserved by writing, became, as knowledge went onward and spread, and the culture of man's understanding advanced, a kind of property impossible to disregard, and the interference of modern legislation upon the subject, by the stat. 8 Anne, professing by its title to be 'For the encouragement of learning,' and using the words 'taken the liberty,' in the preamble, whether it operated in augmentation or diminution of the private rights of authors, having left them to some extent untouched, it was found that the common law, in providing for the protection of property, provided for their security, at least before general publication by the writer's consent." Knight Bruce, V.C., in Prince Albert v. Strange , 2 DeGex & Sm. 652, 695 (1849).

22. "The question, however, does not turn upon the form or amount of mischief or advantage, loss or gain. The author of manuscripts, whether he is famous or obscure, low or high, has a right to say of them, if innocent, that whether interesting or dull, light or heavy, salable or unsalable, they shall not, without his consent, be published." Knight Bruce, V.C., in Prince Albert v. Strange , 2 DeGex & Sm. 652, 694.

23. Duke of Queensbury v . Shebbeare, 2 Eden 329 (1758); Bartlett v. Crittenden , 5 McLean 32, 41 (1849).

24. Drone on Copyright , pp. 102, 104; Parton v. Prang , 3 Clifford 537, 548 (1872); Jefferys v. Boosey , 4 H.L.C.815, 867, 962 (1854).

25. "The question will be whether the bill has stated facts of which the court can take notice, as a case of civil property, which it is bound to protect. The injunction cannot be maintained on any principle of this sort, that if a letter has been written in the way of friendship, either the continuance or the discontinuance of the friendship affords a reason for the interference of the court." Lord Eldon in Gee v. Pritchard , 2 Swanst. 402, 413 (1818).

"Upon the principle, therefore, of protecting property, it is that the common law, in cases not aided or prejudiced by statute, shelters the privacy and seclusion of thought and sentiments committed to writing, and desired by the author to remain not generally known." Knight Bruce, V.C., in Prince Albert v. Strange , 2 DeGex & Sm. 652, 695.

"It being conceded that reasons of expediency and public policy can never be made the sole basis of civil jurisdiction, the question, whether upon any ground the plaintiff can be entitled to the relief which he claims, remains to be answered; and it appears to us that there is only one ground upon which his title to claim, and our jurisdiction to grant, the relief, can be placed. We must be satisfied, that the publication of private letters, without the consent of the writer, is an invasion of an exclusive right of property which remains in the writer, even when the letters have been sent to, and are still in the possession of, his correspondent." Duer, J., in Woolsey v. Judd , 4 Duer 379, 384 (1855).

26. "A work lawfully published, in the popular sense of the term, stands in this respect, I conceive, differently from a work which has never been in that situation. The former may be liable to be translated, abridged, analyzed, exhibited in morsels, complimented, and otherwise treated, in a manner that the latter is not.

"Suppose, however -- instead of a translation, an abridgment, or a review -- the case of a catalogue -- suppose a man to have composed a variety of literary works ('innocent,' to use Lord Eldon's expression), which he has never printed or published, or lost the right to prohibit from being published -- suppose a knowledge of them unduly obtained by some unscrupulous person, who prints with a view to circulation a descriptive catalogue, or even a mere list of the manuscripts, without authority or consent, does that law allow this? I hope and believe not. The same principles that prevent more candid piracy must, I conceive, govern such a case also.

"By publishing of a man that he has written to particular persons, or on particular subjects, he may be exposed, not merely to sarcasm, he may be ruined. There may be in his possession returned letters that he had written to former correspondents, with whom to have had relations, however harmlessly, may not in after life be a recommendation; or his writings may be otherwise of a kind squaring in no sort with his outward habits and worldly position. There are callings even now in which to be convicted of literature, is dangerous, though the danger is sometimes escaped.

"Again, the manuscripts may be those of a man on account of whose name alone a mere list would be a matter of general curiosity. How many persons could be mentioned, a catalogue of whose unpublished writings would, during their lives or afterwards, command a ready sale!" Knight Bruce, V.C., in Prince Albert v. Strange , 2 DeGex & Sm. 652, 693.

27. "A copy or impression of the etchings would only be a means of communicating knowledge and information of the original, and does not a list and description of the same? The means are different, but the object and effect are similar; for in both, the object and effect is to make known to the public more or less of the unpublished work and composition of the author, which he is entitled to keep wholly for his private use and pleasure, and to withhold altogether, or so far as he may please, from the knowledge of others. Cases upon abridgments, translations, extracts, and criticisms of published works have no reference whatever to the present question; they all depend upon the extent of right under the acts respecting copyright, and have no analogy to the exclusive rights in the author of unpublished compositions which depend entirely upon the common law right of property." Lord Cottenham in Prince Albert v. Strange , 1 McN. & G. 23, 43 (1849). "Mr. Justice Yates, in Millar v. Taylor , said that an author's case was exactly similar to that of an inventor of a new mechanical machine; that both original inventions stood upon the same footing in point of property, whether the case were mechanical or literary, whether an epic poem or an orrery; that the immorality of pirating another man's invention was as great as that of purloining his ideas. Property in mechanical works or works of art, executed by a man for his own amusement, instruction, or use, is allowed to subsist, certainly, and may, before publication by him, be invaded not merely by copying, but by description or by catalogue, as it appears to me. A catalogue of such works may in itself be valuable. It may also as effectually show the bent and turn of the mind, the feelings and taste of the artist, especially if not professional, as a list of his papers. The portfolio or the studio may declare as much as the writing table. A man may employ himself in private in a manner very harmless, but which, disclosed to society, may destroy the comfort of his life, or even his success in it. Everyone, however, has a right, I apprehend, to say that the produce of his private hours is not more liable to publication without his consent, because the publication must be creditable or advantageous to him, than it would be in opposite circumstances.

"I think, therefore, not only that the defendant here is unlawfully invading the plaintiff's rights, but also that the invasion is of such a kind and affects such property as to entitle the plaintiff to the preventive remedy of an injunction; and if not the more, yet, certainly, not the less, because it is an intrusion -- an unbecoming and unseemly intrusion -- an intrusion not alone in breach of conventional rules, but offensive to that inbred sense of propriety natural to every man -- if intrusion, indeed, fitly describes a sordid spying into the privacy of domestic life -- into the home (a word hitherto sacred among us), the home of a family whose life and conduct form an acknowledged title, though not their only unquestionable title, to the most marked respect in this country." Knight Bruce, V.C., in Prince Albert v. Strange , 2 DeGex & Sm. 652, 696, 697.

28. Kiernan v. Manhattan Quotation Co. , 50 How. Pr. 194 (1876).

29. "The defendants' counsel say that a man acquiring a knowledge of another's property without his consent is not by any rule or principle which a court of justice can apply (however secretly he may have kept or endeavored to keep it) forbidden without his consent to communicate and publish that knowledge to the world, to inform the world what the property is, or to describe it publicly, whether orally or in print or writing.

"I claim, however, leaving to doubt whether, as to property of a private nature, which the owner, without infringing on the right of any other, may and does retain in a state of privacy, it is certain that a person who, without the owner's consent, express or implied, acquires a knowledge of it, can lawfully avail himself of the knowledge so acquired to publish without his consent a description of the property.

"It is probably true that such a publication may be in a manner or relate to property of a kind rendering a question concerning the lawfulness of the act too slight to deserve attention. I can conceive cases, however, in which an act of the sort may be so circumstanced or relate to property such, that the matter may weightily affect the owner's interest or feelings, or both. For instance, the nature and intention of an unfinished work of an artist, prematurely made known to the world, may be painful and deeply prejudicial against him; nor would it be difficult to suggest other examples. . . .

"It was suggested that, to publish a catalogue of a collector's gems, coins, antiquities, or other such curiosities, for instance, without his consent, would be to make use of his property without his consent; and it is true, certainly, that a proceeding of that kind may not only as much embitter one collector's life as it would flatter another -- may be not only an ideal calamity -- but may do the owner damage in the most vulgar sense. Such catalogues, even when not descriptive, are often sought after, and sometimes obtain very substantial prices. These, therefore, and the like instances, are not necessarily examples merely of pain inflicted in point of sentiment or imagination; they may be that, and something else beside." Knight Bruce, V.C., in Prince Albert v. Strange , 2 DeGex & Sm. 652, 689, 690.

30. Hoyt v. Mackenzie , 3 Barb. Ch. 320, 324 (1848); Wetmore v. Scovell , 3 Edw. Ch. 515 (1842). See Sir Thomas Plumer in 2 Ves. & B. 19 (1813).

31. Woolsey v. Judd , 4 Duer. 379, 404 (1855). "It has been decided, fortunately for the welfare of society, that the writer of letters, though written without any purpose of profit, or any idea of literary property, possesses such a right of property in them, that they cannot be published without his consent, unless the purpose of justice, civil or criminal, require the publication." Sir Samuel Romilly, arg., in Gee v. Pritchard , 2 Swanst. 402, 418 (1818). But see High on Injunctions, 3d ed., §1012, contra.

32. "But a doubt has been suggested, whether mere private letters, not intended as literary compositions, are entitled to the protection of an injunction in the same manner as compositions of a literary character. This doubt had probably arisen from the habit of not discriminating between the different rights of property which belong to an unpublished manuscript, and those which belong to a published book. The latter, as I have intimated in another connection, is a right to take the profits of publication. The former is a right to control the act of publication, and to decide whether there shall be any publication at all. It has been called a right of property; an expression perhaps not quite satisfactory, but on the other hand sufficiently descriptive of a right which, however incorporeal, involves many of the essential elements of property, and is at least positive and definite. This expression can leave us in no doubt as to the meaning of the learned judges who have used it, when they have applied it to cases of unpublished manuscripts. They obviously intended to use it in no other sense, than in contradistinction to the mere interest of feeling, and to describe a substantial right of legal interest." Curtis on Copyright , pp. 93, 94.

The resemblance of the right to prevent publication of an unpublished manuscript to the well recognized rights of personal immunity is found in the treatment of it in connection with the rights of creditors. The right to prevent such publication and the right of action for its infringement, like the cause of action for an assault, battery, defamation, or malicious prosecution, are not assets available to creditors.

"There is no law which can compel an author to publish. No one can determine this essential matter of publication but the author. His manuscripts, however valuable, cannot, without his consent, he seized by his creditors as property. McLean, J., in Bartlett v. Crittenden , 5 McLean 32, 37 (1839).

It has also been held that even where the sender's rights are not asserted, the receiver of a letter has not such property in it as passes to his executor or administrator as a salable asset. Eyre v. Higbee , 22 How. Pr. (N.Y.) 198 (1861).

"The very meaning of the word 'property' in its legal sense is 'that which is peculiar or proper to any person; that which belongs exclusively to one.' The first meaning of the word from which it is derived -- proprius -- is 'one's own.' " Drone on Copyright , p. 6.

It is clear that a thing must be capable of identification in order to be the subject of exclusive ownership. But when its identity can be determined so that individual ownership may be asserted, it matters not whether it be corporeal or incorporeal.

33. "Such then being, as I believe, the nature and the foundation of the common law as to manuscripts independently of Parliamentary additions and subtractions, its operation cannot of necessity be confined to literary subjects. That would be to limit the rule by the example. Wherever the produce of labor is liable to invasion in an analogous manner, there must, I suppose, be a title to analogous protection or redress." Knight Bruce, B.C., in Prince Albert v. Strange , 2 DeGex & Sm. 652, 696.

34. "The question, therefore, is whether a photographer who has been employed by a customer to take his or her portrait is justified in striking off copies of such photograph for his own use, and selling and disposing of them, or publicly exhibiting them by way of advertisement or otherwise, without the authority of such customer, either express or implied. I say 'express or implied,' because a photographer is frequently allowed, on his own request, to take a photograph of a person under circumstances in which a subsequent sale by him must have been in the contemplation of both parties, though not actually mentioned. To the question thus put, my answer is in the negative, that the photographer is not justified in so doing. Where a person obtains information in the course of a confidential employment, the law does not permit him to make any improper use of the information so obtained; and an injunction is granted, if necessary, to restrain such use; as, for instance, to restrain a clerk from disclosing his master's accounts, or an attorney from making known his client's affairs, learned in the course of such employment. Again, the law is clear that a breach of contract, whether express or implied, can be restrained by injunction. In my opinion the case of the photographer comes within the principles upon which both these classes of cases depend. The object for which he is employed and paid is to supply his customer with the required number of printed photographs of a given subject. For this purpose the negative is taken by the photographer on glass; and from this negative copies can be printed in much larger numbers than are generally required by the customer. The customer who sits for the negative thus puts the power of reproducing the object in the hands of the photographer; and in my opinion the photographer who uses the negative to produce other copies for his own use, without authority, is abusing the power confidentially placed in his hands merely for the purpose of supplying the customer; and, further, I hold that the bargain between the customer and the photographer includes, by implication, an agreement that the prints taken from the negative are to be appropriated to the use of the customer only." Referring to the opinions delivered in Tuck v. Priester , 10 Q.B.D. 639, the learned Justice continued: "Then Lord Justice Lindley says: 'I will deal first with the injunction, which stands, or may stand, on a totally different footing from either the penalties or the damages. It appears to me that the relation between the plaintiffs and the defendant was such that, whether the plaintiffs had any copyright or not, the defendant has done that which renders him liable to an injunction. He was employed by the plaintiffs to make a certain number of copies of the picture, and that employment carried with it the necessary implication that the defendant was not to make more copies for himself, or to sell the additional copies in this country in competition with his employer. Such conduct on his part is a gross breach of contract and a gross breach of faith, and, in my judgment, clearly entitled the plaintiffs to an injunction whether they have a copyright in the picture or not.' That case is the more noticeable, as the contract was in writing; and yet, it was held to be an implied condition that the defendant should not make any copies for himself. The phrase 'a gross breach of faith' used by Lord Justice Lindley in that case applies with equal force to the present, when a lady's feelings are shocked by finding that the photographer who was employed to take her likeness for her own use is publicly exhibiting and selling copies thereof." North, J., in Pollard v. Photographic Co. , 40 Ch.D. 345, 349-352 (1888).

"It may be said also that the cases to which I have referred are all cases in which there was some right of property infringed, based upon the recognition by the law of protection being due for the products of a man's own skill or mental labor; whereas in the present case the person photographed has done nothing to merit such protection, which is meant to prevent legal wrongs, and not mere sentimental grievances. But a person whose photograph is taken by a photographer is not thus deserted by the law; for the Act of 25 and 26 Vict., c. 68, s. 1, provides that when the negative of any photograph is made or executed for or on behalf of another person for a good or valuable consideration, the person making or executing the same shall not retain the copyright thereof, unless it is expressly reserved to him by agreement in writing signed by the person for or on whose behalf the same is so made or executed; but the copyright shall belong to the person for or on whose behalf the same shall have been made or executed.

"The result is that in the present case the copyright in the photograph is in one of the plaintiffs. It is true, no doubt, that sect. 4 of the same act provides that no proprietor of copyright shall be entitled to the benefit of the act until registration, and no action shall be sustained in respect of anything done before registration; and it was, I presume, because the photograph of the female plaintiff has not been registered that this act was not referred to by counsel in the course of the argument. But, although the protection against the world in general conferred by the act cannot be enforced until after registration, this does not deprive the plaintiffs of their common law right of action against the defendant for his breach of contract and breach of faith. This is quite clear from the cases of Morison v. Moat [9 Hare 241] and Tuck v. Priester [19 Q.B.D. 629] already referred to, in which latter case the same act of Parliament was in question." Per North, J., ibid., p. 352.

This language suggests that the property right in photographs or portraits may be one created by statute, which would not exist in the absence of registration; but it is submitted that it must eventually be held here, as it has been in the similar cases, that the statute provision becomes applicable only when there is a publication, and that before the act of registering there is property in the thing upon which the statute is to operate.

35. Duke of Queensberry v. Shabbeare , 2 Eden 329; Murray v. Heath , 1 B. & Ad. 804; Tuck v. Priester , 19 Q.B.D. 629.

36. See Mr. Justice Story in Folsom v. Marsh , 2 Story 100, 111 (1841):

"If he [the recipient of a letter] attempt to publish such letter or letters on other occasions, not justifiable, a court of equity will prevent the publication by an injunction, as a breach of private confidence or contract, or of the rights of the author; and a fortiori , if he attempt to publish them for profit; for then it is not a mere breach of confidence or contract, but it is a violation of the exclusive copyright of the writer. . . . The general property, and the general rights incident to property, belong to the writer, whether the letters are literary compositions, or familiar letters, or details of facts, or letters of business. The general property in the manuscripts remains in the writer and his representatives, as well as the general copyright. A fortiori , third persons, standing in no privity with either party, are not entitled to publish them, to subserve their own private purposes of interest, or curiosity, or passion."

37. "The receiver of a letter is not a bailee, nor does he stand in a character analogous to that of a bailee. There is no right to possession, present or future, in the writer. The only right to be enforced against the holder is a right to prevent publication, not to require the manuscript from the holder in order to a publication of himself." Per Hon. Joel Parker, quoted in Grigsby v. Breckenridge , 2 Bush 480, 489 (1867).

38. In Morison v. Moat , 9 Hare 241, 255 (1851), a suit for an injunction to restrain the use of a secret medical compound, Sir George James Turner, V.C., said: "That the court has exercised jurisdiction in cases of this nature does not, I think, admit of any question. Different grounds have indeed been assigned for the exercise of that jurisdiction. In some cases it has been referred to property, in others to contract, and in others, again, it has been treated as founded upon trust or confidence -- meaning, as I conceive, that the court fastens the obligation on the conscience of the party, and enforces it against him in the same manner as it enforces against a party to whom a benefit is given, the obligation of performing a promise on the faith of which the benefit has been conferred; but upon whatever grounds the jurisdiction is founded, the authorities leave no doubt as to the exercise of it."

39. A similar growth of the law showing the development of contractual rights into rights of property is found in the law of good-will. There are indications, as early as the Year Books, of traders endeavoring to secure to themselves by contract the advantages now designated by the term "good-will," but it was not until 1743 that good-will received legal recognition as property apart from the personal covenants of the traders. See Allan on Goodwill , pp. 2, 3.

40. The application of an existing principle to a new state of facts is not judicial legislation. To call it such is to assert that the existing body of law consists practically of the statutes and decided cases, and to deny that the principles (of which these cases are ordinarily said to be evidence) exist at all. It is not the application of an existing principle to new cases, but the introduction of a new principle, which is properly termed judicial legislation.

But even the fact that a certain decision would involve judicial legislation should not be taken as conclusive against the propriety of making it. This power has been constantly exercised by our judges, when applying to a new subject principles of private justice, moral fitness, and public convenience. Indeed, the elasticity of our law, its adaptability to new conditions, the capacity for growth, which has enabled it to meet the wants of an ever-changing society and to apply immediate relief for every recognized wrong, have been its greatest boast.

"I cannot understand how any person who has considered the subject can suppose that society could possibly have gone on if judges had not legislated, or that there is any danger whatever in allowing them that power which they have in fact exercised, to make up for the negligence or the incapacity of the avowed legislator. That part of the law of every country which was made by judges has been far better made than that part which consists of statutes enacted by the legislature." 1 Austin's Jurisprudence , p. 224.

The cases referred to above show that the common law has for a century and a half protected privacy in certain cases, and to grant the further protection now suggested would be merely another application of an existing rule.

41. Loi Relative á la Presse . 11 Mai 1868.

"II. Toute publication dans un écrit périodique relative á un fait de la vie privée constitue une contravention punie d'un amende de cinq cent francs.

"La poursuite ne pourra être exercée que sur la plainte de la partie intéressée."

Rivière, Codes Français et Lois Usuelles , App. Code Pen., p. 20.

42. See Campbell v. Spottiswoode , 3 B. & S. 769, 776; Henwood v. Harrison , L.R. 7 C.P. 606; Gott v. Pulsifer , 122 Mass. 235.

43. "Nos moeurs n'admettent pas la prétention d'enlever aux investigations de la publicité les actes qui relèvent de la vie publique, et ce dernier mot ne doit pas être restreint à la vie officielle ou à celle du fonctionnaire. Tout homme qui appelle sur lui l'attention ou les regards du publique, soit par une mission qu'il a reçue ou qu'il se donne, soit par le rôle qu'il s'attribue dans l'industrie, les arts, le theâtre, etc., ne peut plus invoquer contre la critique ou l'exposé de sa conduite d'autre protection que les lois qui repriment la diffamation et l'injure." Circ. Mins. Just., 4 Juin, 1868. Rivière, Codes Français et Lois Usuelles , App. Code Pen., 20 n(b).

44. "Celui-la seul a droit au silence absolu qui n'a pas espressément ou indirectment provoqué ou authorisé l'attention, l'approbation ou le blâme." Circ. Mins. Just., 4 Juin, 1868. Rivière, Codes Français et Lois Usuelles , App. Code Pén., 20 n(b).

The principle thus expressed evidently is designed to exclude the wholesale investigations into the past of prominent public men with which the American public is too familiar, and also, unhappily, too well pleased; while not entitled to the "silence absolu " which less prominent men may claim as their due, they may still demand that all the details of private life in its most limited sense shall not be laid bare for inspection.

45. Wason v. Walters , L.R. 4 Q.B. 73; Smith v. Higgins , 16 Gray 251; Barrows v. Bell , 7 Gray 331.

46. This limitation upon the right to prevent the publication of private letters was recognized early:--

"But consistently with the right [of the writer of letters], the persons to whom they are addressed may have, nay, must, by implication, possess, the right to publish any letter or letters addressed to them, upon such occasions, as require, or justify, the publication or public use of them; but this right is strictly limited to such occasions. Thus, a person may justifiably use and publish, in a suit at law or in equity, such letter or letters as are necessary and proper, to establish his right to maintain the suit, or defend the same. So, if he be aspersed or misrepresented by the writer, or accused of improper conduct, in a public manner, he may publish such parts of such letter or letters, but no more, as may be necessary to vindicate his character and reputation, or free him from unjust obloquy and reproach." Story, J., in Folsom v. Marsh , 2 Story 100, 110, 111 (1841).

The existence of any right in the recipient of letters to publish the same has been strenuously denied by Mr. Drone; but the reasoning upon which his denial rests does not seem satisfactory. Drone on Copyright , pp. 136-139.

47. Townshend on Slander and Libel , 4th ed., §18; Odgers on Libel and Slander , 2d ed., p. 3.

48. "But as long as gossip was oral, it spread, as regards any one individual, over a very small area, and was confined to be immediate circle of his acquaintances. It did not reach, or but rarely reached, those who knew nothing of him. It did not make his name, or his walk, or his conversation familiar to strangers. And what is more to the purpose, it spared him the pain and mortification of knowing that he was gossipped about. A man seldom heard of oral gossip about him which simply made him ridiculous, or trespassed on his lawful privacy, but made no positive attack upon his reputation. His peace and comfort were, therefore, but slightly affected by it." E. L. Godkin, "The Rights of the Citizen: to His Reputation." Scribner's Magazine , July, 1890, p. 66.

Vice-Chancellor Knight Bruce suggested in Prince Albert v. Strange , 2 DeGex & Sm. 652, 694, that a distinction would be made as to the right to privacy of works of art between an oral and a written description or catalogue.

49. See Drone on Copyright , pp. 121, 289, 290.

50. Compare the French law.

En probitant l'envahissement de la vie privée, sans qu'il soit nécessaire d'établir l'intention criminelle, la loi a entendue interdire toute discussion de la part de la défense sur la vérité des faits. Le remède eut été pire que le mal, si un débat avait pu s'engager sur ce terrain." Circ. Mins. Just., 4 Juin, 1868. Rivière, Codes Français et Lois Usuelles , App. Code Pen., 20 n(a).

51. Comp. Drone on Copyright , p. 107.

52. Comp. High on Injunctions , 3d ed., §1015; Townshend on Libel and Slander , 4th ed., §§417a-417d.

53. The following draft of a bill has been prepared by William H. Dunbar, Esq., of the Boston bar, as a suggestion for possible legislation:

"Section 1. Whoever publishes in any newspaper, journal, magazine, or other periodical publication any statement concerning the private life or affairs of another, after being requested in writing by such other person not to publish such statement or any statement concerning him, shall be punished by imprisonment in the State prison not exceeding five years, or by imprisonment in the jail not exceeding two years, or by fine not exceeding one thousand dollars; provided, that no statement concerning the conduct of any person in, or the qualifications of any person for, a public office or position which such person holds, has held, or is seeking to obtain, or for which such person is at the time of such publication a candidate, or for which he or she is then suggested as a candidate, and no statement of or concerning the acts of any person in his or her business, profession, or calling, and no statement concerning any person in relation to a position, profession, business, or calling, bringing such person prominently before the public, or in relation to the qualifications for such a position, business, profession, or calling of any person prominent or seeking prominence before the public, and no statement relating to any act done by any person in a public place, nor any other statement of matter which is of public and general interest, shall be deemed a statement concerning the private life or affairs of such person within the meaning of this act.

"Section 2. It shall not be a defence to any criminal prosecution brought under Section 1 of this act that the statement complained of is true, or that such statement was published without a malicious intention; but no person shall be liable to punishment for any statement published under such circumstances that if it were defamatory the publication thereof would be privileged."

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The Right to Data Privacy: Revisiting Warren & Brandeis

In their famous 1890 article The Right to Privacy, Samuel Warren and Louis Brandeis found privacy as an implicit right within existing law. Regarded as perhaps the most influential legal essay of all time, it offers concepts that ring as true today as they did in 1890. In defining privacy as an important legal principle implicit in the law, they focused on information privacy, such as public disclosure of personal information, rather than decisional privacy. Analyzing the 1890 article is an ideal starting point to assess the origins of privacy law and to understand privacy issues from a simpler time in terms of law and technology. Its concepts thus provide an easily understandable frame of reference before diving into more challenging modern issues and assessing a path forward. Accordingly, this article compares each key principle from 1890 and explores privacy issues that remain similar versus privacy issues that seem new based on particular advances in technology. The key similarity between 1890 and today is that problems of information dissemination present similar issues, albeit on a larger scale. Some key differences between 1890 and today, however, are that computer technologies now allow for massive data collection, massive data retention and increasingly aggressive data analysis that can be used to abuse privacy even with ostensibly public data. Warren and Brandeis taught us that new technologies continually present new privacy issues; so as new technologies are evolving today, thought must still be given to how the law might flexibly adapt to new and unforeseen changes in tech. Their article exposed that various U.S. laws were insufficient in 1890 to broadly protect information privacy, causing Warren and Brandeis to imply a broad right. Today, the same problem persists: laws within the U.S. are inadequate to address privacy harms caused by continually evolving technologies. The U.S. still has no broad express privacy law, and a path forward might contemplate making express what Warren and Brandeis had to imply in order to address new privacy harms. I propose two key ideas. First, the law needs to more clearly distinguish decisional privacy from information privacy. Decisional privacy is really not a privacy interest at all and is instead a personal liberty interest separate from information privacy. Second, when contemplating legal protection for information privacy, perhaps it’s time to consider the arduous and improbable task of enacting a constitutional amendment guaranteeing broad and general protection against information privacy abuse from both government and private actors. While difficult to enact, a broad express federal right could provide significant advantages, such as (1) establish a baseline right from which states and Congress could add consistent legislation; (2) enable courts to restrict clear instances of privacy abuse without waiting for Congress to act, which seems especially helpful given the expected proliferation of artificial intelligence (“AI”) and new and unforeseen privacy harms; (3) increase harmonization with the European Union (“E.U.”) and potentially other jurisdictions; (4) and finally, avoid the problem of originalist or strict constructionist judges refusing to infer or imply a constitutional information privacy right in the wake of the Supreme Court’s Dobbs v. Jackson Women’s Health Organization, 597 U.S. __ (2022), decision. Thus, a flexible and general broad right of federal protection from information privacy abuse might provide an optimal, flexible baseline for courts and regulators to quickly restrict new privacy abuses while allowing time for the states and Congress to enact further detailed legislation.

A man using a smartphone on a cobblestone street with illuminated office windows and a shop in the background.

Photo by Raghu Rai/Magnum

Privacy is power

Don’t just give away your privacy to the likes of google and facebook – protect it, or you disempower us all.

by Carissa Véliz + BIO

Imagine having a master key for your life. A key or password that gives access to the front door to your home, your bedroom, your diary, your computer, your phone, your car, your safe deposit, your health records. Would you go around making copies of that key and giving them out to strangers? Probably not the wisest idea – it would be only a matter of time before someone abused it, right? So why are you willing to give up your personal data to pretty much anyone who asks for it?

Privacy is the key that unlocks the aspects of yourself that are most intimate and personal, that make you most you, and most vulnerable. Your naked body. Your sexual history and fantasies. Your past, present and possible future diseases. Your fears, your losses, your failures. The worst thing you have ever done, said, and thought. Your inadequacies, your mistakes, your traumas. The moment in which you have felt most ashamed. That family relation you wish you didn’t have. Your most drunken night.

When you give that key, your privacy, to someone who loves you, it will allow you to enjoy closeness, and they will use it to benefit you. Part of what it means to be close to someone is sharing what makes you vulnerable, giving them the power to hurt you, and trusting that person never to take advantage of the privileged position granted by intimacy. People who love you might use your date of birth to organise a surprise birthday party for you; they’ll make a note of your tastes to find you the perfect gift; they’ll take into account your darkest fears to keep you safe from the things that scare you. Not everyone will use access to your personal life in your interest, however. Fraudsters might use your date of birth to impersonate you while they commit a crime; companies might use your tastes to lure you into a bad deal; enemies might use your darkest fears to threaten and extort you. People who don’t have your best interest at heart will exploit your data to further their own agenda. Privacy matters because the lack of it gives others power over you.

You might think you have nothing to hide, nothing to fear. You are wrong – unless you are an exhibitionist with masochistic desires of suffering identity theft, discrimination, joblessness, public humiliation and totalitarianism, among other misfortunes. You have plenty to hide, plenty to fear, and the fact that you don’t go around publishing your passwords or giving copies of your home keys to strangers attests to that.

You might think your privacy is safe because you are a nobody – nothing special, interesting or important to see here. Don’t shortchange yourself. If you weren’t that important, businesses and governments wouldn’t be going to so much trouble to spy on you.

You have your attention, your presence of mind – everyone is fighting for it. They want to know more about you so they can know how best to distract you, even if that means luring you away from quality time with your loved ones or basic human needs such as sleep. You have money, even if it is not a lot – companies want you to spend your money on them. Hackers are eager to get hold of sensitive information or images so they can blackmail you. Insurance companies want your money too, as long as you are not too much of a risk, and they need your data to assess that. You can probably work; businesses want to know everything about whom they are hiring – including whether you might be someone who will want to fight for your rights. You have a body – public and private institutions would love to know more about it, perhaps experiment with it, and learn more about other bodies like yours. You have an identity – criminals can use it to commit crimes in your name and let you pay for the bill. You have personal connections. You are a node in a network. You are someone’s offspring, someone’s neighbour, someone’s teacher or lawyer or barber. Through you, they can get to other people. That’s why apps ask you for access to your contacts. You have a voice – all sorts of agents would like to use you as their mouthpiece on social media and beyond. You have a vote – foreign and national forces want you to vote for the candidate that will defend their interests.

As you can see, you are a very important person. You are a source of power.

By now, most people are aware that their data is worth money. But your data is not valuable only because it can be sold. Facebook does not technically sell your data, for instance. Nor does Google. They sell the power to influence you. They sell the power to show you ads, and the power to predict your behaviour. Google and Facebook are not really in the business of data – they are in the business of power. Even more than monetary gain, personal data bestows power on those who collect and analyse it, and that is what makes it so coveted.

T here are two aspects to power. The first aspect is what the German philosopher Rainer Forst in 2014 defined as ‘the capacity of A to motivate B to think or do something that B would otherwise not have thought or done’. The means through which the powerful enact their influence are varied. They include motivational speeches, recommendations, ideological descriptions of the world, seduction and credible threats. Forst argues that brute force or violence is not an exercise of power, for subjected people don’t ‘do’ anything; rather, something is done to them. But clearly brute force is an instance of power. It is counterintuitive to think of someone as powerless who is subjecting us through violence. Think of an army dominating a population, or a thug strangling you. In Economy and Society (1978), the German political economist Max Weber describes this second aspect of power as the ability for people and institutions to ‘carry out [their] own will despite resistance’.

In short, then, powerful people and institutions make us act and think in ways in which we would not act and think were it not for their influence. If they fail to influence us into acting and thinking in the way that they want us to, powerful people and institutions can exercise force upon us – they can do unto us what we will not do ourselves.

There are different types of power: economic, political and so on. But power can be thought of as being like energy: it can take many different forms, and these can change. A wealthy company can often use its money to influence politics through lobbying, for instance, or to shape public opinion through paying for ads.

Power over others’ privacy is the quintessential kind of power in the digital age

That tech giants such as Facebook and Google are powerful is hardly news. But exploring the relationship between privacy and power can help us to better understand how institutions amass, wield and transform power in the digital age, which in turn can give us tools and ideas to resist the kind of domination that survives on violations of the right to privacy. However, to grasp how institutions accumulate and exercise power in the digital age, first we have to look at the relationship between power, knowledge and privacy.

There is a tight connection between knowledge and power. At the very least, knowledge is an instrument of power. The French philosopher Michel Foucault goes even further, and argues that knowledge in itself is a form of power . There is power in knowing. By protecting our privacy, we prevent others from being empowered with knowledge about us that can be used against our interests.

The more that someone knows about us, the more they can anticipate our every move, as well as influence us. One of the most important contributions of Foucault to our understanding of power is the insight that power does not only act upon human beings – it constructs human subjects (even so, we can still resist power and construct ourselves). Power generates certain mentalities, it transforms sensitivities, it brings about ways of being in the world. In that vein, the British political theorist Steven Lukes argues in his book Power (1974) that power can bring about a system that produces wants in people that work against their own interests. People’s desires can themselves be a result of power, and the more invisible the means of power, the more powerful they are. Examples of power shaping preferences today include when tech uses research about how dopamine works to make you addicted to an app, or when you are shown political ads based on personal information that makes a business think you are a particular kind of person (a ‘persuadable’, as the data-research company Cambridge Analytica put it, or someone who might be nudged into not voting, for instance).

The power that comes about as a result of knowing personal details about someone is a very particular kind of power. Like economic power and political power, privacy power is a distinct type of power, but it also allows those who hold it the possibility of transforming it into economic, political and other kinds of power. Power over others’ privacy is the quintessential kind of power in the digital age.

T wo years after it was funded and despite its popularity, Google still hadn’t developed a sustainable business model. In that sense, it was just another unprofitable internet startup. Then, in 2000, Google launched AdWords, thereby starting the data economy. Now called Google Ads, it exploited the data produced by Google’s interactions with its users to sell ads. In less than four years, the company achieved a 3,590 per cent increase in revenue.

That same year, the Federal Trade Commission had recommended to US Congress that online privacy be regulated. However, after the attacks of 11 September 2001 on the Twin Towers in New York, concern about security took precedence over privacy, and plans for regulation were dropped. The digital economy was able to take off and reach the magnitude it enjoys today because governments had an interest in having access to people’s data in order to control them. From the outset, digital surveillance has been sustained through a joint effort between private and public institutions.

The mass collection and analysis of personal data has empowered governments and prying companies. Governments now know more about their citizens than ever before. The Stasi (the security service of the German Democratic Republic), for instance, managed to have files only on about a third of the population, even if it aspired to have complete information on all citizens. Intelligence agencies today hold much more information on all of the population. To take just one important example, a significant proportion of people volunteer private information in social networks. As the US filmmaker Laura Poitras put it in an interview with The Washington Post in 2014: ‘Facebook is a gift to intelligence agencies.’ Among other possibilities, that kind of information gives governments the ability to anticipate protests, and even pre-emptively arrest people who plan to take part. Having the power to know about organised resistance before it happens, and being able to squash it in time, is a tyrant’s dream.

Tech companies’ power is constituted, on the one hand, by having exclusive control of data and, on the other, by the ability to anticipate our every move, which in turn gives them opportunities to influence our behaviour, and sell that influence to others. Companies that earn most of their revenues through advertising have used our data as a moat – a competitive advantage that has made it impossible for alternative businesses to challenge tech titans. Google’s search engine, for example, is as good as it is partly because its algorithm has much more data to learn from than any of its competitors. In addition to keeping the company safe from competitors and allowing it to train its algorithm better, our data also allows tech companies to predict and influence our behaviour. With the amount of data it has access to, Google can know what keeps you up at night, what you desire the most, what you are planning to do next. It then whispers this information to other busybodies who want to target you for ads.

Tech wants you to think that the innovations it brings into the market are inevitable

Companies might also share your data with ‘data brokers’ who will create a file on you based on everything they know about you (or, rather, everything they think they know), and then sell it to pretty much whoever is willing to buy it – insurers, governments, prospective employers, even fraudsters.

Data vultures are incredibly savvy at using both the aspects of power discussed above: they make us give up our data, more or less voluntarily, and they also snatch it away from us, even when we try to resist. Loyalty cards are an example of power making us do certain things that we would otherwise not do. When you are offered a discount for loyalty at your local supermarket, what you are being offered is for that company to conduct surveillance on you, and then influence your behaviour through nudges (discounts that will encourage you to buy certain products). An example of power doing things to us that we don’t want it to do is when Google records your location on your Android smartphone, even when you tell it not to.

Both types of power can also be seen at work at a more general level in the digital age. Tech constantly seduces us into doing things we would not otherwise do, from getting lost down a rabbit hole of videos on YouTube, to playing mindless games, or checking our phone hundreds of times a day. The digital age has brought about new ways of being in the world that don’t always make our lives better. Less visibly, the data economy has also succeeded in normalising certain ways of thinking. Tech companies want you to think that, if you have done nothing wrong, you have no reason to object to their holding your data. They also want you to think that treating your data as a commodity is necessary for digital tech, and that digital tech is progress – even when it might sometimes look worryingly similar to social or political regress. More importantly, tech wants you to think that the innovations it brings into the market are inevitable. That’s what progress looks like, and progress cannot be stopped.

That narrative is complacent and misleading. As the Danish economic geographer Bent Flyvbjerg points out in Rationality and Power (1998), power produces the knowledge, narratives and rationality that are conducive to building the reality it wants. But technology that perpetuates sexist and racist trends and worsens inequality is not progress. Inventions are far from unavoidable. Treating data as a commodity is a way for companies to earn money, and has nothing to do with building good products. Hoarding data is a way of accumulating power. Instead of focusing only on their bottom line, tech companies can and should do better to design the online world in a way that contributes to people’s wellbeing. And we have many reasons to object to institutions collecting and using our data in the way that they do.

Among those reasons is institutions not respecting our autonomy, our right to self-govern. Here is where the harder side of power plays a role. The digital age thus far has been characterised by institutions doing whatever they want with our data, unscrupulously bypassing our consent whenever they think they can get away with it. In the offline world, that kind of behaviour would be called matter-of-factly ‘theft’ or ‘coercion’. That it is not called this in the online world is yet another testament to tech’s power over narratives.

I t’s not all bad news, though. Yes, institutions in the digital age have hoarded privacy power, but we can reclaim the data that sustains it, and we can limit their collecting new data. Foucault argued that, even if power constructs human subjects, we have the possibility to resist power and construct ourselves. The power of big tech looks and feels very solid. But tech’s house of cards is partly built on lies and theft. The data economy can be disrupted. The tech powers that be are nothing without our data. A small piece of regulation, a bit of resistance from citizens, a few businesses starting to offer privacy as a competitive advantage, and it can all evaporate.

No one is more conscious of their vulnerability than tech companies themselves. That is why they are trying to convince us that they do care about privacy after all (despite what their lawyers say in court). That is why they spend millions of dollars on lobbying. If they were so certain about the value of their products for the good of users and society, they would not need to lobby so hard. Tech companies have abused their power, and it is time to resist them.

In the digital age, resistance inspired by the abuse of power has been dubbed a techlash. Abuses of power remind us that power needs to be curtailed for it to be a positive influence in society. Even if you happen to be a tech enthusiast, even if you think that there is nothing wrong with what tech companies and governments are doing with our data, you should still want power to be limited, because you never know who will be in power next. Your new prime minister might be more authoritarian than the old one; the next CEO of the next big tech company might not be as benevolent as those we’ve seen thus far. Tech companies have helped totalitarian regimes in the past, and there is no clear distinction between government and corporate surveillance. Businesses share data with governments, and public institutions share data with companies.

When you expose your privacy, you put us all at risk

Do not give in to the data economy without at least some resistance. Refraining from using tech altogether is unrealistic for most people, but there is much more you can do short of that. Respect other people’s privacy. Don’t expose ordinary citizens online. Don’t film or photograph people without their consent, and certainly don’t share such images online. Try to limit the data you surrender to institutions that don’t have a claim to it. Imagine someone asks for your number in a bar and won’t take a ‘No, thank you’ for an answer. If that person were to continue to harass you for your number, what would you do? Perhaps you would be tempted to give them a fake number. That is the essence of obfuscation, as outlined by the media scholars Finn Bruton and Helen Nissenbaum in the 2015 book of that name. If a clothing company asks for your name to sell you clothes, give them a different name – say, Dr Private Information, so that they get the message. Don’t give these institutions evidence they can use to claim that we are consenting to our data being taken away from us. Make it clear that your consent is not being given freely.

When downloading apps and buying products, choose products that are better for privacy. Use privacy extensions on your browsers. Turn your phone’s wi-fi, Bluetooth and locations services off when you don’t need them. Use the legal tools at your disposal to ask companies for the data they have on you, and ask them to delete that data. Change your settings to protect your privacy. Refrain from using one of those DNA home testing kits – they are not worth it. Forget about ‘smart’ doorbells that violate your privacy and that of others. Write to your representatives sharing your concerns about privacy. Tweet about it. Take opportunities as they come along to inform business, governments and other people that you care about privacy, that what they are doing is not okay.

Don’t make the mistake of thinking you are safe from privacy harms, maybe because you are young, male, white, heterosexual and healthy. You might think that your data can work only for you, and never against you, if you’ve been lucky so far. But you might not be as healthy as you think you are, and you will not be young forever. The democracy you are taking for granted might morph into an authoritarian regime that might not favour the likes of you.

Furthermore, privacy is not only about you. Privacy is both personal and collective. When you expose your privacy, you put us all at risk. Privacy power is necessary for democracy – for people to vote according to their beliefs and without undue pressure, for citizens to protest anonymously without fear of repercussions, for individuals to have freedom to associate, speak their minds, read what they are curious about. If we are going to live in a democracy, the bulk of power needs to be with the people. If most of the power lies with companies, we will have a plutocracy. If most of the power lies with the state, we will have some kind of authoritarianism. Democracy is not a given. It is something we have to fight for every day. And if we stop building the conditions in which it thrives, democracy will be no more. Privacy is important because it gives power to the people. Protect it.

Painting of a woman with a sword defending a fort from attackers; other figures fight with swords and wooden poles and carry stones.

Race and ethnicity

The forging of countries

Two distinct and conflicting forms of nationalism – civic and ethnic – helped create the nation-states of Europe

Luka Ivan Jukić

Photo of an ancient male statue with a cloth draped over his shoulder and arm, three people are sitting on a bench to the side of the statue

Thinkers and theories

The value of our values

When Nietzsche used the tools of philology to explore the nature of morality, he became a ‘philosopher of the future’

Alexander Prescott-Couch

Photo of a doll with curly red hair, blue eyes, and a large maroon hat, wearing a double string of pearls and a red dress.

Rituals and celebrations

Tender, yet creepy

Dolls help children create wonderfully vivid and imaginative worlds, while also serving as unsettling reminders of the abyss

Tishani Doshi

Black-and-white photo of a woman holding her child on a stone pier, with small wooden boats and a shoreline in the background.

Film and visual culture

The risk of beauty

W Eugene Smith’s photos of the Minamata disaster are both exquisite and horrifying. How might we now look at them?

Joanna Pocock

Painting of a rural street on a dark night featuring a two-storey white farmhouse, a red barn, powerlines, and a bright light in the centre.

Sleep and dreams

Spinning the night self

After years of insomnia, I threw off the effort to sleep and embraced the peculiar openness I found in the darkest hours

Annabel Abbs

Painting of two men sitting in a barn, one on a bench and the other on a chair, with a horse and pumpkins in the background.

History of ideas

Philosophy of the people

How two amateur schools pulled a generation of thinkers from the workers and teachers of the 19th-century American Midwest

Joseph M Keegin

Chapter 22: The Right of Privacy

The right of privacy—the right to be left alone, as Justice Louis Brandeis once defined it—is fundamental to our understanding of freedom, but nowhere does the Constitution mention it. When Congress submitted the Bill of Rights to the people for ratification in 1789, privacy was not listed as a liberty that required protection from government. Yet today it is difficult to imagine American society without this right. How did privacy become an essential liberty?

For eighteenth-century men and women, privacy meant the right to be secure in one’s home, safe from the powers of government. The common law phrase, “A man’s home is his castle,” expressed this understanding. All Englishmen, whether in the Old World or the New, believed that “the poorest man may in his cottage bid defiance to all the forces of the crown,” as Sir William Pitt, former British prime minister, said in 1763. This definition of privacy made its way into the U.S. Bill of Rights, albeit indirectly, in two separate amendments. The Third Amendment restrained the government from housing soldiers in private homes; this amendment reaffirmed the English practice as expressed in the Petition of Right (1628). The Fourth Amendment protected homeowners from searches except for probable cause and only then with a properly approved warrant. These guarantees were important, but no one understood them to include the right to be left alone.What they meant instead was protection from arbitrary government.

Privacy in the sense of solitude and isolation—or an ability to have “my space,” as we call it today—was a luxury enjoyed only by the wealthy until the industrial age of the nineteenth century. Most people before then lived on top of each other, literally as well as figuratively. Houses were small and bare. Entire families often slept in one room; toilets were neither separate nor private. The opportunities for intimacy we take for granted simply were not available to most people. The wealth created by industrialization began to change this condition. Houses grew in size, as did the number of people who could afford them, and with these developments came more physical separation and more opportunity to be left alone. The choices offered by a burgeoning marketplace and the vast scale of the American continent also encouraged individualism to a degree unknown in Europe. With these changes came a new meaning of privacy. Now it became a valued part of individual liberty; people assumed that what they did beyond public life, in their own homes, was no one’s business but their own.

After the Civil War, both the rise of large cities and the emergence of new technologies reshaped the concept of privacy. Block upon block of tenement houses in New York City, Chicago, and other big cities re-created the crowded conditions of earlier times. Inventions such as the telephone and the camera made it possible to enter people’s homes and their private lives without physical intrusion. Among the developments most threatening to the sense of privacy was the inexpensive daily newspaper, which regularly reported on the lives of the rich and famous for the amusement of ordinary folks. The stories carried by the new mass media had the ability to ruin reputations, and it was this threat that led to the first laws to protect privacy. These measures allowed harmed individuals to sue for damages by recognizing a general right to privacy, but not a fundamental or constitutional right. Future Supreme Court justice Louis Brandeis captured this new meaning in “The Right to Privacy,” an important Harvard Law Review article in 1890 that outlined its common-law roots.

The Supreme Court began to consider a constitutional right to privacy in the 1920s. Cases involving the Fourth Amendment offered the first opportunity for the justices to consider privacy as a guaranteed right. In 1928, Justice Brandeis eloquently disagreed with the majority decision in Olmstead v. United States that wiretapping did not require a warrant because it involved no physical trespass. The framers of the Fourth and Fifth Amendments, he argued, “sought to protect Americans in their beliefs, their thoughts, their emotions, and their sensations. They conferred, as against the Government, the right to be let alone—the most comprehensive of rights and the one most valued by civilized men.” His views on wiretapping ultimately prevailed, as did his belief that privacy was a constitutionally protected right.

But what about other areas of privacy? What rights did citizens have to make private decisions without governmental interference? Or stated another way, in what private decisions did government have a legitimate interest? Clearly, the right to privacy was not absolute: even in their own homes, citizens could not, for example, commit murder or molest a child.Where did the right to privacy end?

In the 1960s, the use of a new technology—the birth control pill—raised this question in a case that became the basis for our modern understanding of a right of privacy. This case was different from many the Supreme Court has used to interpret the Bill of Rights. It involved an act of civil disobedience for the specific purpose of testing a law. Also, the plaintiffs were well-educated and respected citizens, quite unlike the “not very nice people,” as Justice Felix Frankfurter once labeled them, who were at the center of other rights controversies. The case did not lead to the cries of outrage that accompanied other expansions of rights in the 1960s, but it did set the Court on the path to its most divisive privacy decision, Roe v. Wade , which guaranteed a woman’s right to choose an abortion.

Estelle Griswold was concerned about the problem of world overpopulation. A religious, well-educated woman and wife of an advertising executive, she had worked in Europe after World War II with the Church World Service, helping to relocate the continent’s vast number of refugees. The experience shaped her views about the need to bring the world’s resources and its people in better balance. “A look at the slums of the world, at the chaos of a war-scorched earth, and you realize that life at the point of survival, where food, water and shelter are unobtainable is close to reversion to an animal order,” she wrote later. “Survival is first; civilization is second.”

It was this concern that led her to become executive director of the Planned Parenthood League of Connecticut. She became a crusader for birth control in a campaign that would last the rest of her life, but as she admitted, she really knew little about the subject. She had never seen a diaphragm, then the leading means of birth control, at the time of her interview. What she knew was that women needed to be able to control this most intimate part of their lives.

Regulation of sex and birth control had a tortuous history in Connecticut, as it did in the nation. One of the state’s best-known citizens in the nineteenth century was Anthony Comstock, a lobbyist for the Young Men’s Christian Association’s (YMCA) Committee for the Suppression of Vice. The son of Connecticut Calvinists and a lifelong advocate for religion, he rallied his fellow believers and persuaded Congress to pass the Comstock Act of 1873, which outlawed obscene and immoral materials from the U.S. mails. Among the banned items was anything “advertised or described in a manner calculated to lead another to use or apply it for contraception or abortion.” Six years later, the Connecticut legislature went further and banned the use of any birth control device. State courts interpreted the law also to mean that doctors could not prescribe these devices.

Each year, supporters of Planned Parenthood lobbied the legislature to revise or repeal the ban on the use of birth control—among all the states, only Connecticut took this extreme position—but each year they failed. It was an unfair law, they argued, and its burden fell disproportionately on poor women who either had to refuse their husbands or risk their health and the family’s pocketbook on an unwanted child. Planned Parenthood defied the law by opening clinics in Connecticut in 1935, but the police promptly shut them down. The legislature refused to repeal or modify the ban. Catholic presence was strong in the state, so the law persisted until the 1960s, even though by then it was largely ignored in practice.

It was this situation that Estelle Griswold was determined to remedy. With her allies, she identified two women whose health clearly would be endangered by a pregnancy and enlisted them to bring suit against the state for refusing to allow them to buy birth control devices. Their suit, Poe v. Ullman , made it to the U.S. Supreme Court in 1961, only to be rejected by the justices because of the state’s long-standing refusal to prosecute anyone for violating the statute. There was no fear of enforcement, the Court said, so no harm was done. It would not “be umpire to debates concerning harmless, empty shadows.” This rebuff spurred Griswold to turn the empty shadows into a real controversy. She opened a birth control clinic and set out to ensure that police had no choice but to arrest her for breaking the law. Acting on a complaint, police visited the clinic, where Griswold made certain they saw the banned activities and products. Even though the prosecutor normally declined to bring cases like this to trial, Estelle Griswold’s unwillingness to have the arrest dismissed led to her trial and conviction for violating the state law. She finally had the case that demonstrated harm.

When this case reached the Supreme Court in 1965, the justices sided with Griswold. Writing for the 7-to-2 majority, Justice William O. Douglas ruled that marital relations between a husband and wife were a basic “right of privacy older than the Bill of Rights.” The Constitution protected this right even if it did not mention it specifically. It was an implied right, one that was part of the “penumbra,” or shadow, of several amendments. The First Amendment, for example, contained a freedom to associate privately; the Third and Fourth Amendments protected the sanctity of private homes; the Fifth Amendment’s guarantee against self-incrimination allowed an accused person to keep information private. The majority also found the right of privacy guaranteed in part by the Ninth Amendment, which reserved to the people any rights not named in the Bill of Rights. Rights are expansive, not restrictive, and whenever fundamental rights are at stake, Justice Arthur Goldberg noted in a concurring opinion, the state must have a compelling purpose for abridging these liberties. Invading the “sacred precincts of marital bedrooms” was not a legitimate reason, Goldberg wrote.

Griswold v. Connecticut was a landmark case in establishing constitutional protection for the right of privacy, and it received widespread approval. For Estelle Griswold, it was vindication for a cause she held dear. Three months after the decision, she reopened the birth control clinic in New Haven, and she remained active in women’s causes until her death in 1981. By then, the right of privacy had come to include the right of women to choose whether or not to continue a pregnancy. Unlike the earlier decision, the right to an abortion unleashed a bitter debate that continues today and raises new questions about the limits of privacy in a free society.

In 1972, the Supreme Court extended the right of privacy by striking down a Massachusetts law barring the sale of contraceptives to unmarried couples. This decision was a prelude to Roe v. Wade (1973). The question in the Roe case was straightforward: did government have any compelling interest in a woman’s pregnancy? In language rooted in Griswold , the answer was “no,” at least not in the early stages of pregnancy. The right of privacy, the justices concluded, was “broad enough to encompass a woman’s decision whether or not to terminate her pregnancy,” although once the fetus became capable of living outside the womb, the state could intervene as long as the woman’s health or life is protected.

Roe raised profound moral and religious questions for many Americans: When does life begin? At what point does the state’s interest in protecting life outweigh the woman’s right to privacy, personal autonomy, and equality? Opinion polls continue to reflect a lack of public agreement on these questions. Most Americans support the right to privacy, including a woman’s control over her body, but they are uneasy with the idea that abortion might become a casual practice. The question raised by Roe is not whether abortion will continue to exist in the United States, but what is the extent of the constitutional protection?

Americans overwhelmingly want to keep government out of the bedroom, so the Court’s recognition of a fundamental right to privacy in this area receives broad support, as seen by Lawrence v. Texas , a 2003 case striking down a law that prohibited consensual gay and lesbian sex. Is abortion different? During the three decades since Roe , the justices have reaffirmed the right to privacy in matters of abortion but also have accepted some legislative limits on its practice. In Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), the Court retreated from its position in Roe v. Wade . It allowed some restrictions on the woman’s right to choose, provided the government did not unduly burden or interfere with her ability to get an abortion. Among the limits the justices have found acceptable are laws mandating a twenty-four-hour waiting period, requiring doctors to provide information intended to discourage abortion, and restricting abortions for teenagers younger than a certain age, usually eighteen, if they do not have parental or judicial consent. Today, it is unclear if the justices will continue to trim the broad right it recognized in 1973. A reversal of the Roe decision would give states greater latitude to regulate or even outlaw abortion.

Controversies over privacy extend to more areas of modern life than the bedroom. New technologies are again pushing us to consider questions we have never faced before. Advances in medical technologies allow doctors to keep even critically ill patients alive for long periods of time, but can we keep people alive against their will? Do we have a right to die—or to have others make that decision for us, based on their understanding of our wishes, if we are incapable of making it for ourselves? In 1990, the Supreme Court faced this question for the first time and decided that the right of terminally ill patients to die was part of our right to privacy. Within a few years, all fifty states recognized this right, and a national law, the Patients’ Bill of Rights, required federally funded hospitals to respect patients’ decisions regarding their treatment.

How a person engages in sex should be irrelevant as a matter of state law. Sexual intimacy is a sensitive, key relationship of human existence and the development of human personality. In a diverse nation such as ours, we must preserve the individual freedom to choose, and not imply that there are any ‘right’ ways of conducting relationships.

Oregon extended the meaning of personal autonomy to include a right to doctor-assisted suicide, and in 2006, the Court refused to allow the U.S. attorney general to prosecute assisting doctors under federal drug laws. Further advances in medical technology doubtless will continue to raise questions that require a balance between our right to privacy and society’s interest in preserving life.

New communication technologies, including the Internet, also spur us to consider again our right to keep personal information private. Computers now capture reams of data about each of us, and this information helps to determine everything from our credit rating to the types of advertising we receive. Some of these data relate to things we expect to keep private, such as our medical records or our personal communications. What right do we have to this information, and what right do we have to keep it private? The questions have no simple answers. Knowledge of our purchasing habits allows marketers to provide us more of the goods we want, but it also may open us to sales pitches we prefer to avoid. Potentially far more serious in its consequence is the ability to capture new kinds of personal information, such as our DNA, as part of our medical care. Should insurance companies be allowed to use this information to set individual rates or to deny coverage to those who are genetically vulnerable to costly diseases? Should law enforcement or security agencies have routine access to our DNA, or do we have a expectation of privacy unless the government establishes probable cause to suspect us of a crime?

Increasingly, we as a society are trying to determine what privacy means in this brave new world of advanced technologies. The problem is not a new one. In his dissent in Olmstead v. United States , Justice Brandeis saw the threat to privacy that technical innovation posed to liberty: “Discovery and invention have made it possible for the government, by means far more effective than stretching upon the rack, to obtain disclosure in court of what is whispered in the closet.” He warned that technology had the power not simply to make our lives more comfortable but also to threaten our liberty by invading our private lives.

The right to privacy is about defining the proper relationship between the individual and government. The founding generation aimed to permit individual citizens the widest latitude possible to live their lives and pursue their happiness without interference from government. It also vested sovereignty, or final authority, in the people at large, who in turn authorize elected representatives to act on their behalf. Our sense of democracy, as a result, rests firmly upon the idea of individual autonomy, or personal control over the decisions that affect us. The right of privacy supports our individuality, and it is our ability as individuals to make decisions, separately and collectively, about our present and our future that ultimately protects our liberty.

“The Right to Be Let Alone”

In 1890, overeager journalists attempted to crash an event hosted by a wealthy Boston lawyer-socialite, Samuel Warren, and his law partner, Louis D. Brandeis, who later became a justice on the U.S. Supreme Court. The two wrote an article, “The Right to Privacy,” for the Harvard Law Review that Dean Roscoe Pound of the Harvard Law School cited as “adding a chapter to our law.” The authors argued for a right of privacy or, as Brandeis later defined it in the wiretapping case of Olmstead v. United States (1928), “the right to be let alone—the most comprehensive of rights and the right most valued by civilized men.” Although the Constitution does not mention a right to privacy, the Supreme Court has inferred it from the language of the First, Third, Fourth, Fifth, and Ninth Amendments.

Recent inventions and business methods call attention to the next step which must be taken for the protection of the person, and for securing to the individual what Judge Cooley calls the right “to be let alone.” . . . Of the desirability—indeed of the necessity—of some such protection, there can, it is believed, be no doubt . . . The intensity and complexity of life, attendant upon advancing civilization, have rendered necessary some retreat from the world, and man, under the refining influence of culture, has become more sensitive to publicity, so that solitude and privacy have become more essential to the individual; but modern enterprise and invention have, through invasions upon his privacy, subjected him to mental pain and distress, far greater than could be inflicted by mere bodily injury. Nor is the harm wrought by such invasions confined to the suffering of those who may be made the subjects of journalistic or other enterprise. In this, as in other branches of commerce, the supply creates the demand. Each crop of unseemly gossip, thus harvested, becomes the seed of more, and, in direct proportion to its circulation, results in a lowering of social standards and of morality. Even gossip apparently harmless, when widely and persistently circulated, is potent for evil. It both belittles and perverts. It belittles by inverting the relative importance of things, thus dwarfing the thoughts and aspirations of a people. When personal gossip attains the dignity of print, and crowds the space available for matters of real interest to the community, what wonder that the ignorant and thoughtless mistake its relative importance . . .

[T]he protection afforded to thoughts, sentiments, and emotions, expressed through the medium of writing or of the arts, so far as it consists in preventing publication, is merely an instance of the enforcement of the more general right of the individual to be let alone. It is like the right not to be assaulted or beaten, the right not to be imprisoned, the right not to be maliciously prosecuted, the right not to be defamed. The principle which protects personal writings and all other personal productions . . . is in reality . . . the principle . . . of an inviolate personality.

Various Guarantees Create Zones of Privacy

Critics of the Supreme Court’s decision in Griswold v. Connecticut (1965), which recognized a right to privacy in marriage, chastised the majority justices because the Constitution does not mention a right to privacy specifically. Justice William O. Douglas, in the majority opinion, argued that the right can be inferred legitimately from the language of at least four amendments. He wrote about “penumbras, formed by emanations,” metaphorical language that suggested that the right was as logically related to the amendments as were halos around the sun or other celestial objects.

Specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance . . . Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one . . . The Third Amendment in its prohibition against the quartering of soldiers “in any house” in time of peace without the consent of the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

Justice Arthur Goldberg, in his concurring opinion in Griswold v. Connecticut , relied on the little-used Ninth Amendment, which reserved any rights not listed in the Constitution to the people in his argument in support of the right to privacy.

The Ninth Amendment to the Constitution may be regarded by some as a recent discovery and may be forgotten by others, but since 1791 it has been a basic part of the Constitution which we are sworn to uphold. To hold that a right so basic and fundamental and so deep-rooted in our society as the right of privacy in marriage may be infringed because that right is not guaranteed in so many words by the first eight amendments to the Constitution is to ignore the Ninth Amendment and to give it no effect whatsoever. Moreover, a judicial construction that this fundamental right is not protected by the Constitution because it is not mentioned in explicit terms by one of the first eight amendments or elsewhere in the Constitution would violate the Ninth Amendment, which specifically states that “[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” . . .

Although the Constitution does not speak in so many words of the right of privacy in marriage, I cannot believe that it offers these fundamental rights no protection. The fact that no particular provision of the Constitution explicitly forbids the State from disrupting the traditional relation of the family—a relation as old and as fundamental as our entire civilization— surely does not show that the Government was meant to have the power to do so. Rather, as the Ninth Amendment expressly recognizes, there are fundamental personal rights such as this one, which are protected from abridgment by the Government though not specifically mentioned in the Constitution.

Table of Contents

The term “privacy” is used frequently in ordinary language as well as in philosophical, political and legal discussions, yet there is no single definition or analysis or meaning of the term. The concept of privacy has broad historical roots in sociological and anthropological discussions about how extensively it is valued and preserved in various cultures. Moreover, the concept has historical origins in well known philosophical discussions, most notably Aristotle's distinction between the public sphere of political activity and the private sphere associated with family and domestic life. Yet historical use of the term is not uniform, and there remains confusion over the meaning, value and scope of the concept of privacy.

Early treatises on privacy appeared with the development of privacy protection in American law from the 1890's onward, and privacy protection was justified largely on moral grounds. This literature helps distinguish descriptive accounts of privacy, describing what is in fact protected as private, from normative accounts of privacy defending its value and the extent to which it should be protected. In these discussions some treat privacy as an interest with moral value, while others refer to it as a moral or legal right that ought to be protected by society or the law. Clearly one can be insensitive to another's privacy interests without violating any right to privacy, if there is one.

There are several skeptical and critical accounts of privacy. According to one well known argument there is no right to privacy and there is nothing special about privacy, because any interest protected as private can be equally well explained and protected by other interests or rights, most notably rights to property and bodily security (Thomson, 1975). Other critiques argue that privacy interests are not distinctive because the personal interests they protect are economically inefficient (Posner, 1981) or that they are not grounded in any adequate legal doctrine (Bork, 1990). Finally, there is the feminist critique of privacy, that granting special status to privacy is detrimental to women and others because it is used as a shield to dominate and control them, silence them, and cover up abuse (MacKinnon, 1989).

Nevertheless, most theorists take the view that privacy is a meaningful and valuable concept. Philosophical debates concerning definitions of privacy became prominent in the second half of the twentieth century, and are deeply affected by the development of privacy protection in the law. Some defend privacy as focusing on control over information about oneself (Parent, 1983), while others defend it as a broader concept required for human dignity (Bloustein, 1964), or crucial for intimacy (Gerstein, 1978; Inness, 1992). Other commentators defend privacy as necessary for the development of varied and meaningful interpersonal relationships (Fried, 1970, Rachels, 1975), or as the value that accords us the ability to control the access others have to us (Gavison, 1980; Allen, 1988; Moore, 2003), or as a set of norms necessary not only to control access but also to enhance personal expression and choice (Schoeman, 1992), or some combination of these (DeCew, 1997). Discussion of the concept is complicated by the fact that privacy appears to be something we value to provide a sphere within which we can be free from interference by others, and yet it also appears to function negatively, as the cloak under which one can hide domination, degradation, or physical harm to women and others.

This essay will discuss all of these topics, namely, (1) the historical roots of the concept of privacy, including the development of privacy protection in tort and constitutional law, and the philosophical responses that privacy is merely reducible to other interests or is a coherent concept with fundamental value, (2) the critiques of privacy as a right, (3) the wide array of philosophical definitions or defenses of privacy as a concept, providing alternative views on the meaning and value of privacy (and whether or not it is culturally relative), as well as (4) the challenges to privacy posed in an age of technological advance. Overall, most writers defend the value of privacy protection despite the difficulties inherent in its definition and its potential use to shield abuse. A contemporary collection of essays on privacy provides strong evidence to support this point (Paul et al ., 2000). The contributing authors examine various aspects of the right to privacy and its role in moral philosophy, legal theory, and public policy. They also address justifications and foundational arguments for privacy rights.

1.1 Informational Privacy

1.2 the constitutional right to privacy, 1.3 reductionism vs. coherentism, 2.1 thomson's reductionism, 2.2 posner's economic critique, 2.3 bork's view, 2.4 the feminist critique of privacy, 3.1 privacy and control over information, 3.2 privacy and human dignity, 3.3 privacy and intimacy, 3.4 privacy and social relationships, 3.5 privacy and restricted access, 3.6 the scope of privacy, 3.7 is privacy relative, 4. privacy and technology, bibliography, other internet resources, related entries.

Aristotle's distinction between the public sphere of politics and political activity, the polis , and the private or domestic sphere of the family, the oikos , as two distinct spheres of life, is a classic reference to a private domain. The public/private distinction is also sometimes taken to refer to the appropriate realm of governmental authority as opposed to the realm reserved for self-regulation, along the lines described by John Stuart Mill in his essay, On Liberty . Furthermore, the distinction arises again in Locke's discussion of property in his Second Treatise on Government . In the state of nature all the world's bounty is held in common and is in that sense public. But one possesses oneself and one's own body, and one can also acquire property by mixing one's labor with it, and in these cases it is one's private property. Margaret Mead and other anthropologists have demonstrated the ways various cultures protect privacy through concealment, seclusion or by restricting access to secret ceremonies (Mead, 1949). Alan Westin (1967) has surveyed studies of animals demonstrating that a desire for privacy is not restricted to humans. However, what is termed private in these multiple contexts varies. Privacy can refer to a sphere separate from government, a domain inappropriate for governmental interference, forbidden views and knowledge, solitude, or restricted access, to list just a few.

More systematic written discussion of the concept of privacy is often said to begin with the famous essay by Samuel Warren and Louis Brandeis titled “The Right to Privacy” (Warren and Brandeis, 1890). Citing “political, social, and economic changes” and a recognition of “the right to be let alone” they argued that existing law afforded a way to protect the privacy of the individual, and they sought to explain the nature and extent of that protection. Focusing in large part on the press and publicity allowed by recent inventions such as photography and newspapers, but referring as well to violations in other contexts, they emphasized the invasion of privacy brought about by public dissemination of details relating to a person's private life. Warren and Brandeis felt a variety of existing cases could be protected under a more general right to privacy which would protect the extent to which one's thoughts, sentiments, and emotions could be shared with others. Urging that they were not attempting to protect the items produced, or intellectual property, but rather the peace of mind attained with such protection, they said the right to privacy was based on a principle of “inviolate personality” which was part of a general right of immunity of the person, “the right to one's personality” (Warren and Brandeis 1890, 195, 215). The privacy principle, they believed, was already part of common law and the protection of one's home as one's castle, but new technology made it important to explicitly and separately recognize this protection under the name of privacy. They suggested that limitations of the right could be determined by analogy with the law of slander and libel, and would not prevent publication of information about public officials running for office, for example. Warren and Brandeis thus laid the foundation for a concept of privacy that has come to be known as control over information about oneself.

Although the first cases after the publication of their paper did not recognize a privacy right, soon the public and both state and federal courts were endorsing and expanding the right to privacy. In an attempt to systematize and more clearly describe and define the new right of privacy being upheld in tort law, William Prosser wrote in 1969 that what had emerged were four different interests in privacy. Not claiming to be providing an exact definition, and admitting that there had been confusion and inconsistencies in the development of privacy protection in the law, Prosser nevertheless described the four “rather definite” privacy rights as follows:

Intrusion upon a person's seclusion or solitude, or into his private affairs.
Public disclosure of embarrassing private facts about an individual.
Publicity placing one in a false light in the public eye.
Appropriation of one's likeness for the advantage of another (Prosser 1969, 389).

Prosser noted that the intrusion in the first privacy right had expanded beyond physical intrusion, and pointed out that Warren and Brandeis had been concerned primarily with the second privacy right. Nevertheless, Prosser felt that both real abuses and public demand had led to general acceptance of these four types of privacy invasions. On his view, answers to three main questions were at the time as yet unclear: i) whether appearance in public implied forfeiture of privacy, ii) whether facts part of a “public record” could still be private, and iii) whether a significant lapse of time affected the privacy of revelations. Note that Warren and Brandeis were writing their normative views about what they felt should be protected under the rubric of privacy, whereas Prosser was describing what courts had in fact protected in the 70 years following publication of the Warren and Brandeis paper. Thus it is not surprising that their descriptions of privacy differ. Because the Supreme Court has been explicit in ruling that privacy is a central reason for Fourth Amendment protection, privacy as control over information about oneself has come to be viewed by many as also including protection against unwarranted searches, eavesdropping, surveillance, and appropriation and misuses of one's communications. Thomas Nagel (2002) gives a more contemporary discussion of privacy, concealment, publicity and exposure.

In 1965 a quite different right to privacy, independent of informational privacy and the Fourth Amendment, was recognized explicitly by the Supreme Court. It is now commonly called the constitutional right to privacy. The right was first announced in the Griswold v. Connecticut (381 U.S. 479) case, which overturned convictions of the Director of Planned Parenthood and a doctor at Yale Medical School for dispersing contraceptive related information, instruction, and medical advice to married persons. The constitutional right to privacy was described by Justice William O. Douglas as protecting a zone of privacy covering the social institution of marriage and the sexual relations of married persons. Despite controversy over Douglas' opinion, the constitutional privacy right was soon cited to overturn a ban against interracial marriage, to allow individuals to possess obscene matter in their own homes, and to allow distribution of contraceptive devices to individuals, both married and single. The most famous application of this right to privacy was as one justification of abortion rights defended in 1973 in Roe v. Wade (410 U.S. 113) and subsequent decisions on abortion. While Douglas vaguely called it a “penumbral” right “emanating” from the Constitution, and the Court has been unable to clearly define the right, it has generally been viewed as a right protecting one's individual interest in independence in making certain important and personal decisions about one's family, life and lifestyle. Which personal decisions have been protected by this privacy right has varied depending on the makeup of the Court. In 1986 in Bowers v. Hardwick (478 U.S. 186) privacy was not held to cover a ban on anti-sodomy laws in Georgia, despite the intimate sexual relations involved.

Criticism of the constitutional right to privacy has continued, particularly in the popular press, Roe v. Wade may be in jeopardy, and many viewed the Bowers decision as evidence of the demise of the constitutional right to privacy. Yet in 2003 in Lawrence v. Texas (538 U.S. 918), the Supreme Court ruled 5-4 that a Texas statute making it a crime for two people of the same sex to engage in certain intimate behavior violated the guarantee of equal protection and vital interests in liberty and privacy protected by the due process clause of the Constitution, thus overruling Bowers v. Hardwick . Jean L. Cohen (2002) gives a theoretical defense of this inclusive view of the constitutional right to privacy. She defends a constructivist approach to privacy rights and intimacy, arguing that privacy rights protect personal autonomy and that a constitutionally protected right to privacy is indispensable for a modern conception of reason and her interpretation of autonomy.

One way of understanding the growing literature on privacy is to view it as divided into two main categories, which we may call reductionism and coherentism . Reductionists are generally critical of privacy, while coherentists defend the coherent fundamental value of privacy interests. Ferdinand Schoeman (1984) introduced somewhat different terminology which makes it easier to understand this distinction. According to Schoeman, a number of authors have believed

…there is something fundamental, integrated, and distinctive about the concerns traditionally grouped together under the rubric of "privacy issues." In opposing this position, some have argued that the cases labeled "privacy issues" are diverse and disparate, and hence are only nominally or superficially connected. Others have argued that when privacy claims are to be defended morally, the justifications must allude ultimately to principles which can be characterized quite independently of any concern with privacy. Consequently, the argument continues, there is nothing morally distinctive about privacy. I shall refer to the position that there is something common to most of the privacy claims as the "coherence thesis." The position that privacy claims are to be defended morally by principles that are distinctive to privacy I shall label the "distinctiveness thesis." Theorists who deny both the coherence thesis and the distinctiveness thesis argue that in each category of privacy claims there are diverse values at stake of the sort common to many other social issues and that these values exhaust privacy claims. The thrust of this complex position is that we could do quite well if we eliminated all talk of privacy and simply defended our concerns in terms of standard moral and legal categories (Schoeman 1984, 5).

These latter theorists, who reject both Schoeman's coherence thesis and distinctiveness thesis, may be referred to as reductionists , for they view what are called privacy concerns as analyzable or reducible to claims of other sorts, such as infliction of emotional distress or property interests. They deny that there is anything useful in considering privacy as a separate concept. They conclude, then, that there is nothing coherent, distinctive or illuminating about privacy interests.

On the other side, more theorists have argued that there is something fundamental and distinctive and coherent about the various claims that have been called privacy interests. On this view, privacy has value as a coherent and fundamental concept, and most individuals recognize it as a useful concept as well. Those who endorse this view may be called coherentists . Nevertheless, it is important to recognize that coherentists have quite diverse, and sometimes overlapping, views on what it is that is distinctive about privacy and what links diverse privacy claims.

2. Critiques of Privacy

Probably the most famous reductionist view of privacy is one from Judith Jarvis Thomson (1975). Noting that there is little agreement on what privacy is, Thomson examines a number of cases that have been thought to be violations of the right to privacy. On closer inspection, however, Thomson believes all those cases can be adequately and equally well explained in terms of violations of property rights or rights over the person, such as a right not to be listened to. Ultimately the right to privacy, on Thomson's view, is merely a cluster of rights. Those rights in the cluster are always overlapped by, and can be fully explained by, property rights or rights to bodily security. The right to privacy, on her view, is “derivative” in the sense that there is no need to find what is common in the cluster of privacy rights. Privacy is derivative in its importance and justification, according to Thomson, as any privacy violation is better understood as the violation of a more basic right. Numerous commentators provide strong arguments against Thomson's critique (Scanlon, 1975; Inness, 1992).

Richard Posner (1981) also presents a critical account of privacy, arguing that the kinds of interests protected under privacy are not distinctive. Moreover, his account is unique because he argues that privacy is protected in ways that are economically inefficient. With respect to information, on Posner's view privacy should only be protected when access to the information would reduce its value (e.g. allowing students access to their letters of recommendation make those letters less reliable and thus less valuable, and hence they should remain confidential or private). Focusing on privacy as control over information about oneself, Posner argues that concealment or selective disclosure of information is usually to mislead or manipulate others, or for private economic gain, and thus protection of individual privacy is less defensible than others have thought because it does not maximize wealth. In sum, Posner defends organizational or corporate privacy as more important than personal privacy, because the former is likely to enhance the economy.

Another strong critic of privacy is Robert Bork (1990), whose criticism is aimed at the constitutional right to privacy established by the Supreme Court in 1965. Bork views the Griswold v. Connecticut decision as an attempt by the Supreme Court to take a side on a social and cultural issue, and as an example of bad constitutional law. Bork's attack is focused on Justice William O. Douglas and his majority opinion in Griswold . Bork's major point is that Douglas did not derive the right to privacy from some pre-existing right or from natural law, but merely created a new right to privacy with no foundation in the Constitution or Bill of Rights. Bork is correct that the word “privacy” never appears in those documents. Douglas had argued, however, that the right to privacy could be seen to be based on guarantees from the First, Third, Fourth, Fifth, and Ninth Amendments. Taken together, the protections afforded by these Amendments showed that a basic zone of privacy was protected for citizens, and that it covered their ability to make personal decisions about their home and family life. In contrast, Bork argues i) that none of the Amendments cited covered the case before the Court, ii) that the Supreme Court never articulated or clarified what the right to privacy was or how far it extended, and he charges iii) that the privacy right merely protected what a majority of justices personally wanted it to cover. In sum, he accuses Douglas and the Court majority of inventing a new right, and thus overstepping their bounds as judges by making new law, not interpreting the law. Bork's views continue to be defended by others, in politics and in the popular press.

Theorists including William Parent (1983) and Judith Thomson (1975) argue that the constitutional right to privacy is not really a privacy right, but is more aptly described as a right to liberty. Other commentators believe, to the contrary, that even if Douglas' opinion is flawed in its defense, using vague language about a penumbral privacy right emanating from the Constitution and its Amendments, there is nevertheless a historically and conceptually coherent notion of privacy, distinct from liberty, carved out by the constitutional privacy cases (Inness, 1992; Schoeman, 1992; Johnson, 1994; DeCew, 1997).

There is no single version of the feminist critique of privacy, yet it can be said in general that many feminists worry about the darker side of privacy, and the use of privacy as a shield to cover up domination, degradation and abuse of women and others. If distinguishing public and private realms leaves the private domain free from any scrutiny, then these feminists such as Catharine MacKinnon (1989) are correct that privacy can be dangerous for women when it is used to cover up repression and physical harm to them by perpetuating the subjection of women in the domestic sphere and encouraging nonintervention by the state. Jean Bethke Elshtain (1981, 1995) and others suggest that it appears feminists such as MacKinnon are for this reason rejecting the public/private split, and are, moreover, recommending that feminists and others jettison or abandon privacy altogether. But, Elshtain points out, this alternative seems too extreme.

A more reasonable view, according to Anita Allen (1988), is to recognize that while privacy can be a shield for abuse, it is unacceptable to reject privacy completely based on harm done in private. A total rejection of privacy makes everything public, and leaves the domestic sphere open to complete scrutiny and intrusion by the state. Yet women surely have an interest in privacy that can protect them from state imposed sterilization programs or government imposed drug tests for pregnant women mandating results sent to police, for instance, and that can provide reasonable regulations such as granting rights against marital rape. Thus collapsing the public/private dichotomy into a single public realm is inadequate. What puzzles feminists is how to make sense of an important and valuable notion of privacy that provides them a realm free from scrutiny and intervention by the state, without reverting to the traditional public/private dichotomy that has in the past relegated women to the private and domestic sphere where they are victims of abuse and subjection. The challenge is to find a way for the state to take very seriously the domestic abuse that used to be allowed in the name of privacy, while also preventing the state from insinuating itself into all the most intimate parts of women's lives. This means drawing new boundaries for justified state intervention and thus understanding the public/private distinction in new ways.

3. Views on the Meaning and Value of Privacy

Narrow views of privacy focusing on control over information about oneself that were defended by Warren and Brandeis and by William Prosser are also endorsed by more recent commentators including Fried (1970) and Parent (1983). In addition, Alan Westin describes privacy as the ability to determine for ourselves when, how, and to what extent information about us is communicated to others (Westin, 1967). Perhaps the best example of a contemporary defense of this view is put forth by William Parent. Parent explains that he proposes to defend a view of privacy that is consistent with ordinary language and does not overlap or confuse the basic meanings of other fundamental terms. He defines privacy as the condition of not having undocumented personal information known or possessed by others. Parent stresses that he is defining the condition of privacy, as a moral value for people who prize individuality and freedom, and not a moral or legal right to privacy. Personal information is characterized by Parent as factual (otherwise it would be covered by libel, slander or defamation), and these are facts that most persons choose not to reveal about themselves, such as facts about health, salary, weight, sexual orientation, etc. Personal information is documented, on Parent's view, only when it belongs to the public record, that is, in newspapers, court records, or other public documents. Thus, once information becomes part of a public record, there is no privacy invasion in future releases of the information, even years later or to a wide audience, nor does snooping or surveillance intrude on privacy if no undocumented information is gained. In cases where no new information is acquired, Parent views the intrusion as irrelevant to privacy, and better understood as an abridgment of anonymity, trespass, or harassment. Furthermore, what has been described above as the constitutional right to privacy, is viewed by Parent as better understood as an interest in liberty, not privacy. In sum, there is a loss of privacy on Parent's view, only when others acquire undocumented personal information about an individual. DeCew (1997) gives a detailed critique of Parent's position.

In an article written mainly as a defense of Warren and Brandeis' paper and as a response to William Prosser, Edward J. Bloustein (1964) argues that there is a common thread in the diverse legal cases protecting privacy. According to Bloustein, Warren and Brandeis failed to give a positive description of privacy, however they were correct that there was a single value connecting the privacy interests, a value they called “inviolate personality.” On Bloustein's view it is possible to give a general theory of individual privacy that reconciles its divergent strands, and “inviolate personality” is the social value protected by privacy. It defines one's essence as a human being and it includes individual dignity and integrity, personal autonomy and independence. Respect for these values is what grounds and unifies the concept of privacy. Discussing each of Prosser's four types of privacy rights in turn, Bloustein defends the view that each of these privacy rights is important because it protects against intrusions demeaning to personality and against affronts to human dignity. Using this analysis, Bloustein explicitly links the privacy rights in tort law described by Prosser with privacy protection under the Fourth Amendment. He urges that both leave an individual open to scrutiny in a way that leaves one's autonomy and sense of oneself as a person vulnerable, violating one's human dignity and moral personality. The common conceptual thread linking diverse privacy cases prohibiting dissemination of confidential information, eavesdropping, surveillance, and wiretapping, to name a few, is the value of protection against injury to individual freedom and human dignity. Invasion of privacy is best understood, in sum, as affront to human dignity. Although Bloustein admits the terms are somewhat vague, he defends this analysis as conceptually coherent and illuminating.

A more common view has been to argue that privacy and intimacy are deeply related. On one account, privacy is valuable because intimacy would be impossible without it (Fried, 1970; Gerety 1977; Gerstein, 1978; Cohen, 2002). Fried, for example, defines privacy narrowly as control over information about oneself. He extends this definition, however, arguing that privacy has intrinsic value, and is necessarily related to and fundamental for one's development as an individual with a moral and social personality able to form intimate relationships involving respect, love, friendship and trust. Privacy is valuable because it allows one control over information about oneself, which allows one to maintain varying degrees of intimacy. Indeed, love, friendship and trust are only possible if persons enjoy privacy and accord it to each other. Privacy is essential for such relationships on Fried's view, and this helps explain why a threat to privacy is a threat to our very integrity as persons. By characterizing privacy as a necessary context for love, friendship and trust, Fried is basing his account on a moral conception of persons and their personalities, on a Kantian notion of the person with basic rights and the need to define and pursue one's own values free from the impingement of others. Privacy allows one the freedom to define one's relations with others and to define oneself. In this way, privacy is also closely connected with respect and self respect.

Gerstein (1978) argues as well that privacy is necessary for intimacy, and intimacy in communication and interpersonal relationships is required for us to fully experience our lives. Intimacy without intrusion or observation is required for us to have experiences with spontaneity and without shame. Shoeman (1984) endorses these views and stresses that privacy provides a way to control intimate information about oneself and that has many other benefits, not only for relationships with others, but also for the development of one's personality and inner self. Julie Inness (1992) has identified intimacy as the defining feature of intrusions properly called privacy invasions. Inness argues that intimacy is based not on behavior, but on motivation. Inness believes that intimate information or activity is that which draws its meaning from love, liking, or care. It is privacy that protects one's ability to retain intimate information and activity so that one can fulfill one's needs of loving and caring.

A number of commentators defend views of privacy that link closely with accounts stressing privacy as required for intimacy, emphasizing not just intimacy but also more generally the importance of developing diverse interpersonal relationships with others. Rachels (1975) acknowledges there is no single answer to the question why privacy is important to us, because it can be necessary to protect one's assets or interests, or to protect one from embarrassment, or to protect one against the deleterious consequences of information leaks, to name just a few. Nevertheless, he explicitly criticizes Thomson's reductionist view, and urges that privacy is a distinctive right. He basically defends the view that privacy is necessary to maintain a variety of social relationships, not just intimate ones. Privacy accords us the ability to control who knows what about us and who has access to us, and thereby allows us to vary our behavior with different people so that we may maintain and control our various social relationships, many of which will not be intimate. An intriguing part of Rachels' analysis of privacy is that it emphasizes ways in which privacy is not merely limited to control over information. Our ability to control both information and access to us allows us to control our relationships with others. Hence privacy is also connected to our behavior and activities.

Another group of theorists characterize privacy in terms of access. Some commentators describe privacy as exclusive access of a person to a realm of his or her own, and Sissela Bok (1982) argues that privacy protects us from unwanted access by others — either physical access or personal information or attention. Ruth Gavison (1980) defends this more expansive view of privacy in greater detail, arguing that interests in privacy are related to concerns over accessibility to others, that is, what others know about us, the extent to which they have physical access to us, and the extent to which we are the subject of the attention of others. Thus the concept of privacy is best understood as a concern for limited accessibility and one has perfect privacy when one is completely inaccessible to others. Privacy can be gained in three independent but interrelated ways: through secrecy, when no one has information about one, through anonymity, when no one pays attention to one, and through solitude, when no one has physical access to one. Gavison's view is that the concept of privacy is this complex of concepts all part of the notion of accessibility. Furthermore, the concept is also coherent because of the related functions privacy has, namely “the promotion of liberty, autonomy, selfhood, human relations, and furthering the existence of a free society” (Gavison 1980, 347).

Carefully reviewing these various views, Anita Allen (1988) also characterizes privacy as denoting a degree of inaccessibility of persons, their mental states, and information about them to the senses and surveillance of others. She views seclusion, solitude, secrecy, confidentiality, and anonymity as forms of privacy. She also urges that privacy is required by the liberal ideals of personhood, and the participation of citizens as equals. While her view appears to be similar to Gavison's, Allen suggests her restricted access view is broader than Gavison's. This is in part because Allen emphasizes that in public and private women experience privacy losses that are unique to their gender. Noting that privacy is neither a presumptive moral evil nor an unquestionable moral good, Allen nevertheless defends more extensive privacy protection for women in morality and the law. Using examples such as sexual harassment, victim anonymity in rape cases, and reproductive freedom, Allen emphasizes the moral significance of extending privacy protection for women. In some ways her account can be viewed as one reply to the feminist critique of privacy, allowing that privacy can be a shield for abuse, but can also be so valuable for women that privacy protection should be enhanced, not diminished.

Most recently, Adam Moore (2003), building on the views of Gavison, Allen and others, offers a "control over access" account of privacy. According to Moore, privacy is a culturally and species relative right to a level of control over access to bodies or places and information. While defending the view that privacy is relative to species and culture, Moore argues that privacy is objectively valuable — human beings that do not obtain a certain level of control over access will suffer in various ways. Moore claims that privacy, like education, health, and maintaining social relationships, is an essential part of human flourishing or well-being.

There is a further issue that has generated disagreement, even among those theorists who believe privacy is a coherent concept. The question is whether or not the constitutional right to privacy, and the constitutional privacy cases described involving personal decisions about lifestyle and family including birth control, interracial marriage, viewing pornography at home, abortion, and so on, delineate a genuine category of privacy issues, or merely raise questions about liberty of some sort. Parent (1983) explicitly excludes concerns about one's ability to make certain important personal decisions about one's family and lifestyle as genuine privacy issues, saying the constitutional right to privacy cases focus solely on liberty. Among the others who take this view are Henkin (1974), Thomson (1975), Gavison (1980), and Bork (1990). Allen (1988) defines privacy in terms of access and excludes from her definition protection of individual autonomous choice from governmental interference, which she terms a form of liberty. Yet she refers to this latter protection as “decisional privacy” and says determining its category is purely a definitional point and one of labels. Ultimately she believes interference with decisions involving procreation and sexuality raise the same moral concerns as other privacy intrusions, offending the values of personhood. The Supreme Court now claims ( Whalen v. Roe , 429 U.S. 589, 1977) that there are two different dimensions to privacy: both control over information about oneself and control over one's ability to make certain important types of decisions.

Following this sort of reasoning, a number of theorists defend the view that privacy has broad scope, inclusive of the multiple types of privacy issues described by the Court, even though there is no simple definition of privacy. Most of these theorists explore the links between the types of privacy interests and the similarity of reasons for valuing each. Some stress that privacy is necessary for one to develop a concept of self as a purposeful, self determining agent. Privacy enables control over personal information as well as control over our bodies and personal choices for our concept of self (Kupfer, 1987). Some emphasize the importance of intimacy for all privacy issues, noting the need for privacy to protect intimate information about oneself, access to oneself, as well as intimate relationships and decisions about one's actions (Inness, 1992). Some focus on the importance of privacy norms that allow one to restrict others' access to them as well as privacy norms that enable and enhance personal expression and the development of relationships. Privacy provides protection against overreaching social control by others through their access to information or their control over decision making (Schoeman, 1992). Some defend a "control over access" account of privacy that includes control over access to bodies as part of the concept of privacy along with access to places and information (Moore, 2003). Others suggest that privacy is best understood as a cluster concept covering interests in i) control over information about oneself, ii) control over access to oneself, both physical and mental, and iii) control over one's ability to make important decisions about family and lifestyle in order to be self expressive and to develop varied relationships (DeCew, 1997). These three interests are related because in each of the three contexts threats of information leaks, threats of control over our bodies, and threats to our power to make our own choices about our lifestyles and activities all make us vulnerable and fearful that we are being scrutinized, pressured or taken advantage of by others. Privacy has moral value because it shields us in all three contexts by providing certain freedom and independence — freedom from scrutiny, prejudice, pressure to conform, exploitation, and the judgment of others.

Schoeman (1984) points out that the question of whether or not privacy is culturally relative can be interpreted in two ways. One question is whether privacy is deemed valuable to all peoples or whether its value is relative to cultural differences. A second question is whether or not there are any aspects of life that are inherently private and not just conventionally so. Most writers have come to agree that while almost all cultures appear to value privacy, cultures differ in their ways of seeking and obtaining privacy, and probably do differ in the level they value privacy (Westin, 1967; Rachels, 1975). Allen (1988) and Moore (2003) are especially sensitive to the ways obligations from different cultures affect perceptions of privacy. There has been far less agreement on the second question. Some argue that matters relating to one's innermost self are inherently private, but characterizing this realm more succinctly and less vaguely has remained an elusive task. Thus it may well be that one of the difficulties in defining the realm of the private is that privacy is a notion that is strongly culturally relative, contingent on such factors as economics as well as technology available in a given cultural domain.

The earliest arguments by Warren and Brandeis for explicit recognition of privacy protection in law were in large part motivated by expanding communication technology such as the development of widely distributed newspapers and multiply printed reproductions of photographs. Similarly Fourth Amendment protection against search and seizure was extended later in the twentieth century to cover telephone wiretaps and electronic surveillance. It is clear that many people still view privacy is a valuable interest and realize it is now threatened more than ever by technological advances. There are massive databases and Internet records of information about individual financial and credit history, medical records, purchases and telephone calls, for example, and most people do not know what information is stored about them or who has access to it. The ability for others to access and link the databases, with few controls on how they use, share, or exploit the information, makes individual control over information about oneself more difficult than ever before.

There are numerous other cases of the clash between privacy and technology. Consider the following new technologies. Caller ID, originally designed to protect people from unwanted calls from harassers, telemarketers, etc., involves privacy concerns for both the caller and the called. There is widespread mandatory and random drug testing of employees and others, and the Supreme Court has said policies requiring all middle and high school students to consent to drug testing in order to participate in extracurricular activities does not violate the Fourth Amendment, although the Court has disallowed mandatory drug tests on pregnant women for use by police. It had seemed that heat sensors aimed at and through walls to detect such things as growing marijuana would be acceptable. However in 2001 in Kyllo v. U.S. (533 U.S. 27), another close 5-4 decision, the Court decided that thermal imaging devices that reveal information previously unknowable without a warrant does constitute a violation of privacy rights and the Fourth Amendment. Surveillance photos are commonly taken of those using Fast Lane, resulting in tickets mailed to speeding offenders, and similar photos are now taken at red lights in San Diego and elsewhere, leading to surprise tickets. Face scanning in Tampa, at casinos, and at large sporting events such as the Super Bowl, matches those photos with database records of felons, resulting in the capture of multiple offenders on the loose but also posing privacy issues for other innocents photographed without their knowledge. Some rental car drivers are now tracked by Global Positioning System (GPS) satellites, enabling car rental companies, not police, to levy stiff fines for speeding. Immigration officials in Australia are considering proposals to tag asylum seekers with electronic trackers before sending them into the community to await hearings. The media has recently uncovered an FBI Web surveillance system called Carnivore, that appears to sample the communications of as many Internet users as it chooses, not just suspects. Echelon is a covert global satellite network said to have the ability to intercept all phone, fax, and e-mail messages in the world, and may have up to 20 international listening posts. Airline passengers will soon be able to go through customs with a two second biometric scan that confirms identity by mapping the iris of the eye, and U.S. airlines are considering using “smart cards” which will identify passengers by their fingerprints. There is a proliferation of biometric identification using faces, eyes, fingerprints, and other body parts for identifying specific individuals, and the technology for matching the information with other databases is advancing quickly. Anton Alterman (2003) discusses various privacy and ethical issues arising from expanding use of biometric identification. For more on some of the other issues noted above, see other articles in Ethics and Information Technology 5, 3 (2003).

For some cases in the clash between privacy and advancing technologies, it is possible to make a compelling argument for overriding the privacy intrusions. Drug and alcohol tests for airline pilots on the job seem completely justifiable in the name of public safety, for example. With the development of new and more sophisticated technology, however, recent work on privacy is examining the ways in which respect for privacy can be balanced with justifiable uses of emerging technology (Agre and Rotenberg, 1997; Austin, 2003; Brin, 1998; Etzioni, 2000, and Ethics and Information Technology , 6, 1, 2004). Daniel Solove (2006) takes seriously the criticism that privacy suffers from an embarrassment of meanings and the concern that new technologies have given rise to a panoply of new privacy harms. He then endeavors to guide the law toward a more coherent understanding of privacy, by developing a taxonomy to identify a wide range of privacy problems comprehensively and completely. Moore argues that privacy claims should carry more weight when in conflict with other social values and interests. For example, he defends the view that employee agreements that undermine employee privacy should be viewed with suspicion, and he argues that laws and legislation prohibiting the genetic modification of humans will unjustifiably trample individual privacy rights (Moore, 2000). He also defends the view that free speech and expression should not be viewed as more important thean privacy (Moore, 1998). Clearly, in the wake of the terrorist attacks on September 11, 2001, the literature on privacy increasingly focuses on how to balance privacy concerns with the need for public safety in an age of terrorism. Moore (2000) argues that views which trade privacy for security typically strike the wrong balance and in many cases undermine both (Moore, 2000). Etzioni and Marsh (2003) provide a varied collection of essays on balancing rights and public safety after 9/11, highlighting views about where the government will need to expand its authority in fighting the war against terrorism, and where it risks overreaching its authority. Revisions to the U.S. Patriot Act and the extent to which President G.W. Bush has exercised his powers to engage in surreptitious electronic surveillance without court-issued warrants in violation of the Foreign Intelligence Surveillance Act (FISA) will lead to further debates on the importance of privacy protection versus governmental power post 9/11. Although the government needs strong powers to protect its citizens, the executive branch also need to provide a strong voice on behalf of civil liberties and individual rights, including privacy.

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Right to Privacy: Constitutional Rights & Privacy Laws

The right to privacy includes the right to be left alone.

The right to privacy refers to the concept that one's personal information is protected from public scrutiny. U.S. Justice Louis Brandeis called it "the right to be left alone." While not explicitly stated in the U.S. Constitution, some amendments provide some protections.

The right to privacy most often is protected by statutory law. For example, the Health Information Portability and Accountability Act (HIPAA) protects a person's health information, and the Federal Trade Commission (FTC) enforces the right to privacy in various privacy policies and privacy statements.

The right to privacy often must be balanced against the state's compelling interests, including the promotion of public safety and improving the quality of life. Seat-belt laws and motorcycle helmet requirements are examples of such laws. And while many Americans are quite aware that the government collects personal information, most say that government surveillance is acceptable.

Constitutional rights

The right to privacy often means the right to personal autonomy, or the right to choose whether or not to engage in certain acts or have certain experiences. Several amendments to the U.S. Constitution have been used in varying degrees of success in determining a right to personal autonomy:

The First Amendment protects the privacy of beliefs
The Third Amendment protects the privacy of the home against the use of it for housing soldiers
The Fourth Amendment protects privacy against unreasonable searches
The Fifth Amendment protects against self-incrimination, which in turn protects the privacy of personal information
The Ninth Amendment says that the "enumeration in the Constitution of certain rights shall not be construed to deny or disparage other rights retained by the people." This has been interpreted as justification for broadly reading the Bill of Rights to protect privacy in ways not specifically provided in the first eight amendments.

The right to privacy is most often cited in the Due Process Clause of the 14th Amendment, which states:

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

However, the protections have been narrowly defined and usually only pertain to family, marriage, motherhood, procreation and child rearing.

For example, the Supreme Court first recognized that the various Bill of Rights guarantees creates a "zone of privacy" in Griswold v. Connecticut , a 1965 ruling that upheld marital privacy and struck down bans on contraception.

The court ruled in 1969 that the right to privacy protected a person's right to possess and view pornography in his own home. Justice Thurgood Marshall wrote in Stanley v. Georgia that, " If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch."

The controversial case Roe v. Wade in 1972 firmly established the right to privacy as fundamental, and required that any governmental infringement of that right to be justified by a compelling state interest. In Roe, the court ruled that the state's compelling interest in preventing abortion and protecting the life of the mother outweighs a mother's personal autonomy only after viability. Before viability, the mother's right to privacy limits state interference due to the lack of a compelling state interest.

In 2003, the court, in Lawrence v. Texas , overturned an earlier ruling and found that Texas had violated the rights of two gay men when it enforced a law prohibiting sodomy. [ Countdown: 10 Milestones in Gay Rights History ]

Justice Anthony Kennedy wrote, "The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government."

Access to personal information

A person has the right to determine what sort of information about them is collected and how that information is used. In the marketplace, the FTC enforces this right through laws intended to prevent deceptive practices and unfair competition.

The Privacy Act of 1974 prevents unauthorized disclosure of personal information held by the federal government. A person has the right to review their own personal information, ask for corrections and be informed of any disclosures.

The Financial Monetization Act of 1999 requires financial institutions to provide customers with a privacy policy that explains what kind of information is being collected and how it is being used. Financial institutions are also required to have safeguards that protect the information they collect from customers.

The Fair Credit Reporting Act protects personal financial information collected by credit reporting agencies. The act puts limits on who can access such information and requires agencies to have simple processes by which consumers can get their information, review it and make corrections.

Online privacy

Browsers and social media platforms, such as Facebook and Twitter, allow users to choose levels of privacy settings, from share everything to only share with friends to share only the minimum, such as your name, gender and profile picture. Protecting personally identifiable information is important for preventing identity theft.

The Children's Online Privacy Protection Act (COPPA) enforces a parent's right to control what information websites collect about their children. Websites that target children younger than 13 or knowingly collect information from children must post privacy policies, get parental consent before collecting information from children, allow parents to decide how such information is used and provide an opt-out option for future collection of a child's information.

Right of publicity

Just as a person has the right to keep personal information private, he or she also has the right to control the use of his or her identity for commercial promotion. Unauthorized use of one's name or likeness is recognized as an invasion of privacy.

There are four types of invasion of privacy: intrusion, appropriation of name or likeness, unreasonable publicity and false light. If a company uses a person's photo in an ad claiming that the person endorses a certain product, the person could file a lawsuit claiming misappropriation.

Movable boundaries

The Supreme Court approaches the right to privacy and personal autonomy on a case-by-case basis. As public opinion changes regarding relationships and activities, and the boundaries of personal privacy change, largely due to social media and an atmosphere of "sharing," the definition of the right to privacy is ever-changing.

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Personal Liberty Essay – Roe v. Wade (1973)

by Dennis Goldford, Ph.D.

In American constitutional law the phrase “right to privacy” refers not to questions of information and secrecy, but rather to the idea that government has no authority to interfere with the right of individuals to make their own decisions about intimately personal, fundamental matters like marriage, sexual activity, and child rearing. Though controversial, the right to privacy developed because of, and must be understood in terms of, two important questions in our constitutional system: first, how are individual rights protected against government, and, second, what individual rights are protected against government?

Prior to the adoption of the Fourteenth Amendment, individuals had no federal protection against actions of their own state governments. In American constitutional law the phrase “right to privacy” refers not to questions of information and secrecy, but rather to the idea that government has no authority to interfere with the right of individuals to make their own decisions about intimately personal, fundamental matters like marriage, sexual activity, and child rearing. Though controversial, the right to privacy developed because of, and must be understood in terms of, two important questions in our constitutional system: first, how are individual rights protected against government, and, second, what individual rights are protected against government? Prior to the adoption of the Fourteenth Amendment in 1868, the rights of Americans were protected (beyond a few provisions of Article I, Section 10, of the Constitution and the mechanisms of separation of powers and federalism) in three principal ways. First, individuals were protected against certain actions of the federal government by the Bill of Rights. Second, individuals were protected against certain actions of their own state governments by a bill of rights or other such provisions in the constitution of their state. Third, individuals traveling to a state other than their own were protected against certain actions of that state government by certain provisions of Article IV of the Constitution. The key point is that, at that time, individuals had no federal protection against actions of their own state governments, because the Supreme Court held in Barron v. City of Baltimore (1833) that the Bill of Rights applied to federal actions only—not to state actions. As the Court stated in Twining v. New Jersey (1908), “the first ten Amendments of the Federal Constitution are restrictive only of national action.”

Due to doubts about the constitutionality of the Civil Rights Act of 1866, which provided for federal protection for the newly freed slaves against the southern state governments, the Fourteenth Amendment was ratified in 1868 and stated, in part: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” The Supreme Court held in the Slaughter House Cases that the Privileges or Immunities Clause of the Fourteenth Amendment did not now make the protections of the Bill of Rights applicable against state governments in defense of fundamental individual rights. Nevertheless, many justices believed that the Fourteenth Amendment does in fact establish a basket of fundamental rights grounded in the U.S. Constitution to be protected against state infringement. Increasingly, the Supreme Court came to argue that the idea of liberty mentioned in the Due Process Clause of the Fourteenth Amendment provides the textual basis for this basket of protected fundamental rights.

Prior to the adoption of the Fourteenth Amendment, individuals had no federal protection against actions of their own state governments.

If the Due Process Clause answers the question of how fundamental individual rights are protected by the Constitution against state governments, the other question became more problematic: what fundamental individual rights are protected by the Constitution against state governments? In other words, how do we know what rights are contained in that federally guaranteed basket? One answer, suggested in the late nineteenth century and supported most prominently by Justice Hugo Black in the twentieth, is that any and all rights protected against federal infringement by the Bill of Rights are protected against state infringement by the Due Process Clause of the Fourteenth Amendment. However, the Supreme Court as a whole has never accepted this argument. Rejecting it for the Court in Palko v. Connecticut (1937), Justice Benjamin Cardozo wrote: “Whatever would be a violation of the original bill of rights (Amendments one to eight) if done by the federal government is now equally unlawful by force of the Fourteenth Amendment if done by a state. There is no such general rule.” The question remains, therefore: how do we determine what fundamental individual rights are protected by the Constitution against state governments?

Justice Cardozo went on to suggest two criteria for making that determination: a right is contained in that federally guaranteed basket of rights protected against state infringement if it is “implicit in the concept of ordered liberty” or is, citing another case, a “principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental” ( Palko ). This allowed for substantial overlap between the Bill of Rights and the Due Process Clause, for the Court came to see many of the rights protected against federal infringement by the Bill of Rights as protected against state infringement by the Due Process Clause because they satisfied either or both of these two criteria. Still, the Court’s acceptance of these two criteria in many ways simply shifted rather than solved the initial problem. How do we know if a right is one protected by the Due Process Clause? How do we then know when a right is “implicit in the concept of ordered liberty” or is a “principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental”?

The problem here is that, in the absence of specific words in a written text, it appears quite difficult to get people to agree on what rights are part of ordered liberty or even on what rights are fundamental in our political and legal traditions. On the one hand, we do not want to claim more rights than are permissible, because asserting a right means limiting majority rule. On the other hand, if we want to defer to the preferences of a popular majority we run the risk of allowing that majority to infringe on individual rights that it really should not endanger. This is why the right to privacy is so controversial, for people disagree about whether it exists and, if it does, about what it protects. Thus, in Griswold v. Connecticut (1965), Justice William Douglas wrote with regard to marriage: “We deal with a right of privacy older than the Bill of Rights—older than our political parties, older than our school system,” whereas Justice Black wrote: “I like my privacy as well as the next one, but I am nevertheless compelled to admit that government has a right to invade it unless prohibited by some specific constitutional provision.”

To be sure, also writing in Griswold , Justice Arthur Goldberg argued, “The language and history of the Ninth Amendment reveal that the Framers of the Constitution believed that there are additional fundamental rights, protected from governmental infringement, which exist alongside those fundamental rights specifically mentioned in the first eight constitutional amendments” (488). Nevertheless, almost no one either before or after Griswold appealed to the Ninth Amendment to justify the protection of an unenumerated— unmentioned—right. Thus, in Roe v. Wade , Justice Harry Blackmun stated: “This right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, 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.” Whether one favors or opposed a right to abortion, it is clear that Justice Blackmun neglected to do the hard work here of dealing with the difficult interpretive questions we have raised. Specifically, why does abortion fall within the right to privacy? (Indeed, appealing to the other criterion, the dissenters in Roe argued that a right to abortion is not a principle of justice grounded in American traditions.) Why, as in the case of Lawrence v. Texas, do homosexual relations fall within the right to privacy?

We could say, of course, that there is no such thing as a right to privacy in the Constitution, because there is no blackletter textual provision containing those words. If we were to say this, however, we would have to remember that there is no black-letter text that provides for either the presumption of innocence or the power of judicial review, both of which are conventionally considered to be in the Constitution. Additionally, we would have to address what is perhaps the central question about the protection of individual rights in our constitutional system: do we have a right to make our own decisions about certain personal and even intimate matters that we consider absolutely fundamental to our identity and sense of self in the absence of an explicit, black-letter text in the Constitution that protects any such right? Long ago, in the case of Calder v. Bull, Justice Samuel Chase wrote: “I cannot subscribe to the omnipotence of a State Legislature, or that it is absolute and without controul; although its authority should not be expressly restrained by the Constitution, or fundamental law, of the State.” As you read and think about the following materials on the right to privacy, ask yourself whether you agree or disagree with Justice Chase.

Dr. Dennis Goldford is Professor of Politics and International Relations at Drake University in Iowa. He teaches in the areas of political theory and constitutional law, and his recent research deals with the originalism debate in contemporary constitutional theory. He has published numerous articles in the areas of political theory and constitutional interpretation, and his recent book is entitled The American Constitution and the Debate Over Originalism (Cambridge, 2005). His current research deals with politics and religion, and with the theory of federalism. Professor Goldford is also a frequent commentator on Iowa and national politics through both local and national media outlets.

The Concept of the Right to Privacy

First Online: 15 February 2024

Cite this chapter

Sohail Aftab 26

Part of the book series: Ius Gentium: Comparative Perspectives on Law and Justice ((IUSGENT,volume 109))

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This chapter investigates the intricate concept of the right to privacy, embarking on a profound meta-theoretical analysis that unveils the multifaceted nature of this fundamental human right. It underscores that privacy, deeply rooted in both dignity and autonomy, is more than just a legal construct—it represents a fundamental cornerstone of human rights, possessing both deontological and instrumental value. One key insight is that privacy doesn’t always hinge on the presence of demonstrable harmful consequences; rather, it stands as an inherent right with strong normative significance. This recognition of privacy as an aspect of human dignity underscores its firm deontological grounding and the need for protection, even when secondary harms may not be readily apparent.

The chapter also confronts the challenge of crafting a universally comprehensive definition for privacy. It acknowledges that privacy infringements are often context-specific, making a one-size-fits-all definition elusive. Yet, this flexibility in the concept is not a weakness but a strength, allowing it to adapt to a wide array of practical issues, particularly in the ever-evolving digital landscape where traditional notions of morality and normativity face dire challenges due to ubiquitous infringements.

Furthermore, the considerations firmly advocate for a human rights approach to the protection of privacy, one supported by moral and constitutional principles. Just as with other fundamental rights, any intrusion into privacy must be justified, especially when it collides with other essential rights like free speech. This necessitates a careful balancing act, as both the right to privacy and the right to free speech hold equal value. Even media outlets and journalists do not possess a special privilege; their conduct should be evaluated based on the nature of the speech they convey. While the framework developed in this chapter fully recognizes the inherent value of free speech, it refrains from elevating it to an absolute right. This recognition stems from the understanding that media often operates with profit maximization as a central goal, especially in today's media landscape where financial considerations are paramount. The chapter's comprehensive conceptual study lays a robust foundation for comprehending the intricate interplay between privacy and free speech, particularly within the context of media intrusions into private life. It thereby offers valuable insights for the subsequent prescriptive phase, where recommendations for privacy law protection in Pakistan and beyond will be carefully formulated.

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Solove ( 2002 ), p. 1089.

Beaney ( 1966 ), p. 255.

Gerety ( 1977 ), p. 233.

Hallborg ( 1986 ), p. 176.

Moore ( 2003 ), p. 215.

Solove ( 2006 ), p. 477.

Birnhack ( 2011 ), p. 51.

Carolan ( 2011 ).

Krotoszynski ( 2016 ), p. xi.

Solove ( 2002 ), p. 1090.

Allen ( 1988 ), p. 04.

For example, Solove has categorized the concepts of privacy into six groups.

For instance, Solove has explained Warren and Brandeis approach under the “right to be alone” heading, while Judith Decew has explained it under Informational Privacy in her piece, “Privacy (Stanford Encyclopaedia of Philosophy), saying: “Warren and Brandeis thus laid the foundation for a concept of privacy that has come to be known as control over information about oneself.” and “Narrow views of privacy focusing on control over information about oneself that were defended by Warren and Brandeis.”

Warren and Brandeis ( 1890 ), p. 196.

Warren and Brandeis ( 1890 ), p. 197.

See Table 1: Shapiro and Pearse ( 2012 ), p. 1489.

Warren and Brandeis ( 1890 ), p. 195.

Warren and Brandeis ( 1890 ), p. 213.

Warren and Brandeis ( 1890 ), p. 205.

Warren and Brandeis ( 1890 ), p. 216. (Footnote omitted).

Warren and Brandeis ( 1890 ), pp. 217–218.

Warren and Brandeis ( 1890 ), pp. 193, 219.

Olmstead v. United States 277 U.S. 438 (1928) (Justice Brandeis registered his dissent which should be considered as an important appendix to his article, covering intrusion this time, which was not comprehensively discussed. The article primarily focused on the publication of private information.)

Olmstead v. United States 277 U.S. 438 (1928) 479–478

Olmstead v. United States 277 U.S. 438 (1928) P. 483: (“Decency, security and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that, in the administration of the criminal law, the end justifies the means -- to declare that the Government may commit crimes in order to secure the conviction of a private criminal -- would bring terrible retribution. Against that pernicious doctrine this Court should resolutely set its face.”)

Letter from Roscoe Pound to William Chilton (1916) quoted in: Brandeis A Mason, ‘A Free Man’s Life’ 70 (1956), cited in: Glancy ( 1979 ). See also: Kramer ( 1989 ).

Prosser ( 1960 ), p. 384.

Posner ( 1978 ), p. 400.

See for details: Moor ( 1990 ), pp. 69–82.

Thomson ( 1975 ), p. 4. According to her approach, X-ray device does not interfere with seclusion yet capable of getting private information. On the other hand, physical assault on somebody is tantamount to not letting him alone yet this is not a privacy violation.

Parent ( 1983b ), p. 342.

Parent ( 1983a ), p. 269.

Solove ( 2002 ), p. 1105.

DeCew ( 1986 ), pp. 154–155.

Posner ( 1978 ), p. 393.

Etzioni ( 2005 ), p. 196.

Solove ( 2002 ), p. 1107.

Haag ( 1971 ), p. 149.

Rachels ( 1975 ), p. 323.

Scanlon ( 1975 ), p. 315.

Rachels ( 1975 ), p. 326.

Solove ( 2002 ), p. 1104.

Gavison ( 1980 ), p. 423. Footnote omitted.

Gavison ( 1980 ), p. 423.

Allen ( 1988 ), p. 03.

Allen ( 1988 ), p. 3.

Bok ( 1989 ), pp. 10–11.

Bok ( 1989 ), p. 12.

Parent ( 1983b ), pp. 344–346.

He terms Gavison’s approach as a unique and “the most compelling” definition that addresses some shortcomings.

Biehler et al. ( 2008 ), pp. 8–9: “It envisages privacy as an original state of secret inaccessibility. It can either be preserved in this pristine state or destroyed. Once access is allowed, the privacy interest is lost.”

Westin (1067), p. 05.

Westin (1067), pp. 4–5.

Westin (1067), p. 46.

Fried ( 1968 ), p. 482.

See: E L Beardsley, ‘Privacy: Autonomy and selective disclosure’ in J Ronald Pennock & J V Chapman eds Privacy (Nomos XIII 1971) 56–70) as cited in: Moor ( 1990 ), p. 74.

Parent ( 1983a ).

Miller ( 1971 ) . Miller defines privacy as: “the basic of an effective right to privacy is the individual’s ability to control the circulation of information relating to him.”

Lusky ( 1972 ), p. 693.

Lusky ( 1972 ), p. 697.

Lusky ( 1972 ), pp. 699–700. Likewise, Lusky also criticizes the courts for following the Westinian approach in balancing other values vis-à-vis privacy. To Lusky, balancing is not a judicial function rather it is a legislative function. The ordinary function of the courts is not to engage in balancing exercise but to “interpret and apply the legislative (or constitutional) rules that embody the results of “balancing” in the broader, non-Westinian sense”.

Lusky ( 1972 ), p. 706.

Lusky ( 1972 ), p. 693. According to Lusky ( 1972 ), p. 708: “Is it better, for our purpose, to describe our problems by use of a term connoting the underlying human value that is the object of our concern (privacy)-deferring judgment as to whether, how, and to what extent it should be accorded legal protection or should we take a short cut and adopt, as our basic term, a phrase that assumes legal protection or the need for it (right of privacy)?”

Lusky ( 1972 ), p. 709.

Parent ( 1983a ), p. 273.

Parent ( 1983b ), p. 344.

Miller ( 1971 ).

Parker ( 1973 –1974), pp. 275–276.

Parker ( 1973 –1974), p. 279. Emphasis supplied.

Parker ( 1973 –1974), p. 280.

Parker ( 1973 –1974), p. 281..

Fried ( 1968 ), p. 475.

Fried ( 1968 ), p. 477.

Fried ( 1968 ), p. 480.

Fried ( 1968 ), p. 490.

Gerstein ( 1978 ), p. 76.

Gerstein ( 1978 ), p. 77.

Gerstein ( 1978 ), p. 78.

Gerstein ( 1978 ), p. 81.

Inness ( 1996 ), p. 56.

Inness ( 1996 ), p. 95.

Solove ( 2008 ), p. 36.

Feldman ( 1994 ), p. 51.

Bloustein ( 1964 ).

A detailed exposition of Prosser’s theory is given in Sect. 3.5.1.1 .

Prosser rejects privacy as a new and independent tort which, according to him, is not based on an independent value of its own but rather a blend of four distinct torts aiming at the protection of three different interests of mental tranquility, reputation, and proprietary interest.

Bloustein ( 1964 ), p. 971.

Prosser’s four torts are: (a) intrusion; (b) public disclosure; (c) use of name or likeness and (d) false light.

Bloustein ( 1964 ), p. 979.

Bloustein ( 1964 ), p. 982. Footnotes omitted.

Bloustein ( 1964 ), p. 989.

Bloustein ( 1964 ), p. 992.

Bloustein ( 1964 ), p. 994.

Bloustein ( 1964 ), p. 995.

Bloustein ( 1964 ), p. 1000. FN omitted.

Reiman ( 1976 ), p. 26.

Reiman ( 1976 ), p. 39.

Reiman ( 1976 ), pp. 40–41. Footnote omitted.

Reiman ( 1976 ), p. 42.

Reiman ( 1976 ), p. 43.

For the following considerations see: Albers ( 2013 ), pp. 15–44.

Albers ( 2014 ), p. 214.

See for the reasons of complexity and the need for a sophisticated approach with reference to data protection regulatory mechanisms: Albers ( 2014 ).

Nissenbaum ( 2009 ).

Nissenbaum ( 2009 ), p. 11.

Nissenbaum ( 2004 ), p. 119.

Nissenbaum ( 2004 ), pp. 138, 159: “The framework of contextual integrity requires that practices be evaluated in relation to entrenched context- relative informational norms, which in turn requires characterizing them in terms of actors (subjects, senders, receivers), types of information, and principles of transmission. If a novel practice results in a departure from the patterns of flow prescribed by entrenched norms, the novel practice is flagged as a breach and we have prima facie evidence that contextual integrity has been violated. Because it invokes several parameters simultaneously and incorporates conceptual resources for resolving conflicts not found in many other theories, contextual integrity is a more sensitive instrument for identifying privacy breaches. In particular, it avoids the impossible mire into which the overworked public/private dichotomy frequently leads when applied to the messy and contingent realms of privacy.” 159.

Nissenbaum ( 2004 ), pp. 154–155.

Nissenbaum ( 2009 ), p. 06.

Nissenbaum ( 2009 ), p. 116. See for a full account of this view with reference to ICT communication, Nissenbaum ( 1998 ), pp. 559–596.

Nissenbaum ( 2009 ), p. 158.

Nissenbaum ( 2009 ), p. 133.

Nissenbaum ( 2009 ), pp. 187, 239.

Fried ( 1968 ), p. 485.

Fried ( 1968 ), pp. 486–487.

Fried ( 1968 ), p. 487. Citation omitted.

Fried ( 1968 ), p. 493.

Reiman ( 1976 ), pp. 38–39: “Privacy is a social ritual by means of which an individual's moral title to his existence is conferred. Privacy is an essential part of the complex social practice by means of which the social group recog- nizes-and communicates to the individual-that his existence is his own. And this is a precondition of personhood. To be a person, an individual must recognize not just his actual capacity to shape his destiny by his choices. He must also recognize that he has an exclusive moral right to shape his destiny. And this in turn presupposes that he believes that the concrete reality which he is, and through which his destiny is realized, belongs to him in a moral sense.”

Gavison ( 1980 ), p. 423. Footnotes omitted.

Gavison ( 1980 ), p. 433.

Gavison ( 1980 ), pp. 428–429.

Gavison ( 1980 ), p. 438.

Gavison ( 1980 ), p. 436.

Gavison ( 1980 ), p. 445.

Gavison ( 1980 ), p. 467.

Gavison ( 1980 ), pp. 467–471.

Solove ( 2008 ).

Solove ( 2008 ), p. 76.

Solove ( 2008 ), p. 112.

Roger Clarke, Smart Card Technical Issues Starter Kit, Ch. 3 (April 8, 1998) as referred by Solove.

Solove ( 2008 ), p. 131.

Solove ( 2008 ), p. 141.

Solove ( 2008 ), p. 147.

Solove ( 2008 ), p. 148.

Solove ( 2008 ), p. 150.

Solove ( 2008 ), p. 152.

Solove ( 2008 ), p. 133.

Solove ( 2008 ), p. 155.

Prosser ( 1960 ), p. 406

Solove ( 2008 ), p. 156.

Solove ( 2008 ), p. 160.

Solove ( 2008 ), p. 163.

Solove ( 2008 ), p. 45.

Solove ( 2008 ), p. 46: “It is no accident that various things are referred to under the rubric of “privacy”. They bear substantial similarities to each other. The analogies between different things can be useful and instructive, for we might seek to create similar laws and policies to regulate them.”

Koops et al. ( 2016 ), p. 483, 576. Koops et al. have analyzed four prominent theoretical works on privacy in a chronological order and have pointed out their limitations. Among them are Westin ( 1967 ); Roger Clarke, Introduction to Dataveillance and Information Privacy, and Definitions of Terms, http://www.rogerclarke.com/DV/Intro.html . Accessed 26 August 2023. Allen ( 2011 ); Finn et al. ( 2013 ). According to Koops et al., a common limitation of these works is, for instance, that, “it is not always clear whether the classification is a typology, a taxonomy, or simply an enumerative list.” (p. 505). The second limitation is that these conceptions parallel discuss both privacy as a concept and the right to privacy, which confuses the normative dimension of the discussion with the positivist approach and thus most of the conceptions fail to cope with the socio-legal challenges posed by modern technological advancements.

Koops et al. ( 2016 ), p. 489.

Koops et al. ( 2016 ), p. 495.

Koops et al. ( 2016 ), pp. 490–491.

Koops et al. ( 2016 ), pp. 567–568.

Roberson v. Rochester Folding Box Co171 N.Y. 538, 64 N.E. 442 (1902) as cited in Prosser’s, William L. “Privacy” Cal. L. Rev. 48 (1960): 383. At page: 384.

Prosser ( 1960 ), p. 389.

Prosser ( 1960 ), pp. 393–396.

Prosser ( 1960 ), p. 398.

Please see Sect. 3.3.3.2 .

Davis ( 1959 ).

Davis ( 1959 ), pp. 1–3.

Davis ( 1959 ), p. 5. Footnotes omitted.

Davis ( 1959 ), pp. 7–9.

Davis ( 1959 ), p. 11.

Davis ( 1959 ), p. 13.

Davis ( 1959 ), pp. 18, 20: “The usefulness of the “right to privacy” as a jural concept can be more easily calculated if “privacy” is recognized as a condition or state achieved when other more elementary interests are safeguarded. Thus, if it is agreed that a person should not be subjected to acts causing mental suffering or emotional distress, and if it is agreed that the inherent utility of personality and circumstances ought to be above piracy or unwarranted expropriation, there arises no need to protect “privacy”. In other words, “privacy” is an interest or condition which derives from and is automatically secured by the protection of more cognizable rights.”

Davis ( 1959 ), p. 24: “[T]o gather together a number of diverse and explicit tort causes of action under general social concepts without further articulation is to undermine the administration of justice by blurring the lines between deserving and undeserving cases.”

Thomson ( 1975 ), p. 295.

For example an X-ray device which is developed for sensing the activities of a person who is unaware of it.

Thomson ( 1975 ), p. 296.

Thomson ( 1975 ), p. 296, 303: “For if we have fairly stringent rights over our property, we have very much more stringent rights over our own persons. None of you came to possess your knee in exactly the way in which you came to possess your shoes or your pornographic pictures: I take it you neither bought nor inherited your left knee. And I suppose you could not very well sell your left knee. But that isn’t because it isn’t yours to sell some women used to sell their hair, and some people nowadays sell their blood but only because who’d buy a used left knee? For if anyone wanted to, you are the only one with a right to sell yours. Again, it’s a nasty business to damage a knee; but you’ve a right to damage yours, and certainly nobody else has its being your left knee includes your having the right that nobody else but you shall damage it.”

Thomson ( 1975 ), p. 306.

Thomson ( 1975 ), p. 313.

Posner ( 1978 ), pp. 397–398.

Posner ( 1978 ), p. 399: “[A]s when a worker conceals a serious health problem from his employer or a prospective husband conceals his sterility from his fiancée.”

Posner ( 1978 ), p. 401.

Posner ( 1978 ), p. 408.

Posner ( 1978 ), p. 396.

Etzioni ( 2005 ).

Etzioni ( 2005 ), p. 18, 42: “The communitarian perspective also enters this analysis by reminding us that a given individual right cannot be used to trump all other considerations, including the common good. Obviously, limiting privacy in the case at hand benefits, not merely the child but also the community.”

Etzioni ( 2005 ), pp. 43–74.

See Ch 3 p. 81 in particular in: Etzioni ( 2005 ).

Etzioni ( 2005 ), pp. 117–120.

MacKinnon ( 1989 ), p. 194.

MacKinnon ( 1989 ), chapter 10.

MacKinnon ( 1989 ), pp. 184–185.

MacKinnon ( 1989 ), p. 187.

MacKinnon ( 1989 ), p. 188. “ The abortion right frames the way men arrange among themselves to control the reproductive consequences of intercourse. The availability of abortion enhances the availability of intercourse. ”

MacKinnon ( 1989 ), p. 191.

MacKinnon ( 1989 ), p. 193.

See for full review: Section 2.

Gerety ( 1977 ), p. 234.

Gavison ( 1991 ), pp. 456–457: “First, we need to have a clear analysis of the two competing values involved, what they are, why they are desirable, and how they relate to each other. This may require some conceptual analysis and a lot of moral and human understanding of the ways in which ideals and goals work in our lives and affect other goals that we have as individuals and a society. When we proceed to discuss conflicts between rights, values, or interests, it is crucial that we not lose sight of what we have learned in the first stage by analyzing the different values. We should remember this because situations of conflict are painful. Therefore, we have a tendency, once we have resolved the conflict as we must, to undervalue what we have given up in order to be at peace with the decision that we have adopted.”

Section 2.1 of this book (Invasive media practices).

For a detailed analysis with an American Constitutional law perspective: Emerson ( 1979 ).

Emerson ( 1979 ), p. 329.

Barendt ( 2005 ), p. 07.

Barendt ( 2005 ), p. 08.

Barendt ( 2005 ), p. 09.

Barendt ( 2005 ), p. 10.

See Barendt ( 2005 ), p. 10: Here Barendt gives the example of the statement, “the moon is made of green cheese.”

Barendt ( 2005 ), p. 11.

Barendt ( 2005 ), p. 12.

Barendt ( 2005 ), p. 14.

Barendt ( 2005 ), p. 18.

Barendt ( 2005 ), p. 20.

Barendt ( 2005 ), p. 21.

Schauer 86, as cited in: Barendt ( 2005 ), p. 21.

A detailed explanation of different approaches to ‘Balancing of human rights and its justification’ is given in Sect. 5.4.1 .

Tunick ( 2015 ), p. 95.

See Lichtenberg ( 1987 ), p. 330: ‘Foundations and Limits of Freedom of the Press’ (1987) 16 Philosophy & Public Affairs 4, 329 ( “(i) More often than not, contemporary news organizations belong to large corporations whose interests influence what gets covered (and, what is probably more central, what does not) and how.2 (2) News organizations are driven economically to capture the largest possible audience, and thus not to turn it off with whatever does turn it off-coverage that is too controversial, too demanding, too disturbing. (3) The media are easily manipulated by government officials (and others), for whom the press, by simply reporting press re- leases and official statements, can be a virtually unfiltered mouthpiece. (4) Characteristics of the media themselves constrain or influence cover- age; thus, for example, television lends itself to an action-oriented, unanalytic treatment of events that can distort their meaning or importance.”

Dawes ( 2014 ), p. 18.

Meiklejohn ( 2000 ), p. 104.

Emerson ( 1979 ), p. 331.

Emerson ( 1979 ), p. 341. Footnote omitted.

See also for example, Glancy ( 2000 ), p. 375: ‘At the Intersection of Visible and Invisible Worlds: United States Privacy Law and the Internet’ (2000)16 Santa Clara Computer & High Tech LJ 357. “Because privacy law has characteristically evolved by solving a particular type of privacy problem or by reacting to a notorious invasion of privacy, or by protecting a particular type of personal information, it is not surprising that context plays an important role in the diversity of privacy law.”

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Aftab, S. (2024). The Concept of the Right to Privacy. In: Comparative Perspectives on the Right to Privacy. Ius Gentium: Comparative Perspectives on Law and Justice, vol 109. Springer, Cham. https://doi.org/10.1007/978-3-031-45575-9_3

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4.3 The Right to Privacy, Self-Determination, and the Freedom of Ideas

Learning outcomes.

By the end of this section, you will be able to:

Outline the components of the rights to privacy, self-determination, and freedom of expression that are deemed essential according to human rights norms.
Analyze how different government systems around the world treat the rights to privacy, self-determination, and freedom of expression.
Describe the paradox of tolerance.

While most constitutions around the world guarantee due process, how the high courts of each state interpret the standard of due process differs considerably from state to state. 31 Most due process clauses provide that no one shall be deprived of life, liberty, or property without due process of law. One often thinks of liberty as freedom from incarceration, but it means much more than that.

To have liberty is to have personal autonomy, and to have personal autonomy, one must have the right to make personal decisions. Thus, the most fundamental aspect of civil liberty is privacy, and in most constitutions, liberty includes the right to privacy.

The Right to Privacy

Merriam-Webster’s Dictionary of Law defines the right to privacy as “the right of a person to be free from intrusion into or publicity concerning matters of a personal nature.” 32 Another way to define the right to privacy is “the right to be left alone.” 33 In a liberal democratic system, privacy is a space separate from public life, allowing individual personal autonomy. Privacy is the ability to think, speak, and behave without being monitored or surveilled by another person or the government. Are you permitted to decide whether to have children and how many? To choose whom you marry? Decisions concerning what to wear, what to study in school, what career to pursue, and what religious beliefs to instill in one’s children are all privacy issues. They are all personal decisions or decisions about which there is debate on whether governments can restrict or require certain conduct.

In their influential article “The Right to Privacy,” attorney Samuel Warren and US Supreme Court justice Louis Brandeis define privacy as the “right of the individual to be let alone.” 34 The right to privacy has been used to assert that liberty exists in a wide range of civil liberties cases in the United States. In Pierce v. Society of Sisters , the Supreme Court found that the 14th Amendment prevents the state from interfering with parents’ choices regarding their child’s education. 35 In Griswold v. Connecticut , Roe v. Wade , and Lawrence v. Texas , the court struck down several laws criminalizing sexual and reproductive decisions between consenting adults in private activities, citing a right to privacy. 36 In Lawrence , Justice Anthony Kennedy wrote:

“The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government.” 37

Griswold vs. Connecticut: The Most Important Supreme Court Case You’ve Never Heard Of

In Griswold v. Connecticut, the US Supreme Court established the Right to Privacy as a liberty implied but not stated in numerous places across the Constitution.

Most countries explicitly recognize a right to privacy. For example, the UK Human Rights Act of 1998 states:

Right to respect for private and family life

Everyone has the right to respect for his private and family life, his home and his correspondence.
There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. 38

The US Constitution does not explicitly mention a right to privacy, but the right to privacy is an essential idea behind several of the rights it specifies. 39 The US Supreme Court has recognized the right to privacy as a fundamental right . 40 As Justice Brandeis wrote in the wiretapping case of Olmstead v. United States (1928), “the right to be let alone [is] the most comprehensive of rights, and the right most valued by civilized men.” 41

The First, Third, Fourth, Fifth, Ninth, and 14th Amendments do explicitly state, in what are referred to as enumerated rights , instances for which the US Supreme Court has affirmed that a right to privacy exists. 42

	Prohibits restrictions on free speech, peaceful assembly (association), and the free exercise of religion
	Prohibits the government from requiring individuals to house or feed soldiers in peacetime
	Prohibits the government from unreasonably searching or seizing an individual or their property; requires the government to appear in court and show probable cause before receiving a court order or a warrant to search or seize an individual or their property
	Guarantees the right to remain silent in a police interrogation
	States that rights not explicitly outlined in the Constitution may still exist with the people
	Prohibits the government from denying equal protection of the laws to all persons

Implicit in the First Amendment protections of free speech, peaceful assembly (association), and free exercise of religion is the right to participate or not participate as an individual decides, 43 and the Ninth Amendment states that rights not explicitly outlined in the Constitution may still exist.

Like many national constitutions, the Universal Declaration of Human Rights includes an express right to privacy. Article 12 of the declaration states:

No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks. 44

Even though member countries have endorsed the UDHR, how each government enacts the right to privacy it contains varies greatly. The UN has appointed a special rapporteur (a person appointed by an organization to report on its meetings) to monitor and report annually on how countries comply with the UN declaration of a right to privacy expressed in the UDHR, especially as it relates to digital surveillance . 45

When viewed as a civil liberty, the right to privacy erects a barrier between individuals and an overly intrusive government. But when is government intrusion permitted?

When Does the Government Restrict Individual Privacy Rights?

Restrictions on the right of privacy or personal autonomy vary widely by country. In the United States, same-sex relations are considered private and protected by the US Constitution. In most of Africa, LGBTQ+ relations or orientation are illegal and considered a detriment to the welfare of the community. 46

Personal privacy boundaries often change as society’s views of personal liberty change. Under a democratic government, it is a society that interprets what is acceptable and if there is a compelling reason for government restrictions on personal decisions. For example, until 1967, many states had laws that declared interracial marriage a crime. In Loving v. Virginia , the US Supreme Court interpreted that due process and a right to privacy require that the choice of whom to love and marry be a personal, private one. 47 It was not until 2015 that this same right was interpreted to include same-sex marriage. 48 As society’s interpretation of what is personal and individual and what is necessary for the good of the community changes, the interpretation of the right to privacy changes. Authoritarian governments force the people to acquiesce to the government’s interpretation of personal private conduct.

Where Can I Engage?

Civil liberties around the world.

You can use one of the following online resources to compare which liberties different countries recognize. Can you spot any trends? How do different countries interpret similar types of liberties in different ways?

Explore civil liberties around the world at the National Constitution Center .

Compare statistical data about human rights at Our World in Data .

Read up-to-date reports on the state of human rights at Human Rights Watch .

Track trends in freedom using the Cato Institute’s yearly Human Freedom Index .

Monitor levels of freedom according to the human rights and rule of law index at TheGlobalEconomy.com .

The degree to which governments recognize the right to make personal, private decisions varies widely around the world. In China, the government restricts the number of children couples may have. 49 In some countries, forced marriages are still common. 50 In some countries, girls are banned from attending school or even suffer violence for attending, and the government does not protect their right to an education, even if their parents want them to attend school. 51 Many countries have laws that require women to wear specific clothing in public or prohibit women from wearing certain items of clothing, restricting a woman’s right to make a personal decision. 52 Thus, even in countries that declare that they will protect privacy and individualism, society’s interpretation of what is necessary to create a community can lead to restrictions intended to contribute to the common good.

What about privacy in areas where security issues arise? The growing prevalence and sophistication of cyber technologies place increasing pressure on the right to privacy in the context of freedom from surveillance.

Cyber Data Issues with Privacy

State and federal laws in the United States protect personal cyber data —that is, data stored electronically. 53 Online users frequently utilize privately owned browsers and social media platforms, such as Facebook and Twitter . These private businesses allow users to choose their level of privacy settings. However, in response to increasing issues with the amount of scrutiny that private businesses provide, the federal government has implemented several laws to regulate private companies’ storage of personal data. The Children’s Online Privacy Protection Act of 1998 (COPPA) , for example, permits parents to control what information websites collect about their children. 54 European countries have even more robust data privacy laws regarding information about children. 55

The History of Internet Tracking and the Battle for Privacy

Internet tracking may have innocent beginnings, but it has become the subject of major political debate.

Another privacy issue is the government’s ability to access an individual’s cyber information. US government agencies’ arguments that they need access to this information in the name of safety and national security have long come up against the US Constitution’s guarantees of the right to privacy. The government asserts that, for the good of the community, it needs access to certain information. 56 Individuals argue that their right to privacy of digital personal data is the same as their right to privacy in the form of “houses, papers, and effects” explicitly protected under the Fourth Amendment ; thus, the government must show probable cause and obtain a warrant from a judge to look at that digital information. Individuals contend that they have the right to confront the government and argue the issue in open court. 57 US government intelligence agencies say that protecting the privacy of this personal information compromises safety and national security 58 and that any intelligence review of a person’s digital data must be secret to avoid tipping off the individual under investigation. This debate is ongoing in the United States and around the world.

Countries whose constitutions include a right to privacy differ in how broadly they interpret that right when it comes to data privacy. The European Union has enacted extensive data protection laws applicable to all member countries. 59 The EU General Data Protection Regulation (GDPR) provides that data about citizens may only be gathered or processed in specific instances. These rules apply to private businesses and government agencies. The restrictions on collecting information are strictly interpreted, providing comprehensive protection to the individual.

The UN Conference on Trade and Development (UNCTAD) actively monitors data privacy issues and laws within its member countries. It has noted that “the collection, use and sharing of personal information to third parties without notice or consent of consumers” has become a significant concern. The UNCTAD Global Cyberlaw Tracker tracks data for 194 states on laws concerning e-transactions, cybercrime, and consumer protection. 60 According to UNCTAD, as of February 2022, “137 out of 194 countries had put in place legislation to secure the protection of data and privacy.” 61

Even though the Chinese constitution includes the right to privacy, the Chinese government has found many reasons to interpret the right narrowly. Article 40 of the constitution of the People’s Republic of China provides for both the freedom and privacy of communication.

“Freedom and privacy of correspondence of citizens of the People’s Republic of China are protected by law. No organization or individual may, on any ground, infringe upon citizens’ freedom and privacy of correspondence, except in cases where, to meet the needs of State security or of criminal investigation, public security or procuratorial organs are permitted to censor correspondence in accordance with the procedures prescribed by law.” 62

However, in China, persons are subject to surveillance in almost all public places, and all cyber communications are monitored. China uses mass surveillance to “eradicate ideological viruses,” which they identify as the religious and cultural beliefs of certain ethnic groups. Thus, while the Chinese constitution contains a right to privacy, the government broadly interprets the exception for safety and security. In practice, the right to privacy in China is almost nonexistent. 63

China: “The World’s Biggest Camera Surveillance Network”

China’s massive surveillance network uses facial recognition and can track any individual’s movements within China.

As the amount of information stored digitally increases, so do the threats of that material being stolen or used by businesses as marketing information without people’s consent. At the same time, governments increasingly seek to regulate access to information that they deem unacceptable or that may pose a threat to their residents’ safety. This is a developing area of tension between individual privacy and government protection or regulation of the community.

Freedom of Expression of Ideas

Another area of ongoing tension between individuals and the government is the freedom of expression of ideas. This freedom includes the right to free speech and the right to the free exercise of religion. Article 19 of the UDHR states, “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.” 64 Article 18 provides that “everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.” 65

The UDHR is not itself legally binding, but the principles it sets out were implemented among UN member countries through the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social, and Cultural Rights (ICESCR), both of which were adopted by the UN General Assembly in 1966. Member countries agree to be monitored on their activities under the provisions of the covenants, which echo much of the language of the UDHR, although some provisions are new. Article 27 of the ICCPR, for example, states that members of “ethnic, religious or linguistic minorities . . . shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.” 66 Together, the UDHR, the ICCPR, and the ICESCR make up what is known as the International Bill of Human Rights. 67

However, freedom of expression and religion is not absolute. Even in countries with extensive speech protections, certain types of speech are never protected. These include libel, slander, obscenity, fighting words or threats, incitement to lawless conduct, breach of national security or classified information, disclosures that impact the right of privacy, and perjury. Some examples of these were discussed earlier in this chapter.

In liberal democracies, the state agrees to tolerate free expression of ideas, and restrictions on expression are minimal; however, many of these countries place restrictions on the expression of specific ideas that do not meet the limited exceptions to protected speech set forth above. This is referred to as the paradox of tolerance . People who hold intolerant ideas argue that the state and society only tolerate those ideas that align with their own viewpoint and that therefore, the government and society are not tolerant of personal ideas and do not respect that degree of personal liberty.

What Can I Do?

Civil liberties and social responsibility.

Many people who hear the term civil liberties think about limits on government interference in individuals’ lives, and they may see government acts that limit or direct their behavior as infringements of their liberties. In these instances, it is important to remember that people live in diverse communities made up of many individuals who may have different perspectives, traditions, beliefs, and needs. Each person’s actions have the potential to affect other individuals in the community and the community as a whole. As discussed in this chapter, members of a community have responsibilities to that community. Understanding the differences between groups within a society is often referred to as intercultural competence , and it is a key component of social responsibility.

Different countries adopt a variety of strategies to address the varying needs of different groups. Within the United States, the corporate world has recently taken up the banner of “social responsibility.” Whether looking at an issue from a corporate position, an advocacy position (such as from the perspective of an interest group), the position of an attorney representing someone whose rights have been violated, or the position of a concerned citizen, linking the ideas of civil liberties with the larger concept of social responsibility allows one to appreciate how the rights of individuals and the larger community are intertwined and how government actions often seek to balance the freedom of the individual with the needs and desires of the community.

For example, in Germany, it is illegal to support the Nazi Party or to deny the Holocaust . 68 Section 130 of the German criminal code “bans incitement to hatred and insults that assault human dignity against people based on their racial, national, religious or ethnic background.” Violations of this code carry a five-year prison sentence. Germany has used section 14 of the law, which bans defiling the memory of the dead, to prosecute Holocaust deniers. 69 The German Basic Law provides that “every person shall have the right freely to express and disseminate his opinions in speech, writing and pictures and to inform himself without hindrance from generally accessible sources. Freedom of the press and freedom of reporting by means of broadcasts and films shall be guaranteed. There shall be no censorship.” 70 Thus, many argue that the restrictions on expressing particular viewpoints show limited tolerance of ideas in Germany, and a paradox of tolerance exists. 71 In the United States, hate speech laws encounter the same objection. However, in the United States, speech enjoys broad protections, and hate speech laws are limited to instances where speech involves violence, intimidation, and direct threats. 72

Germany’s Online Hate Speech Laws: Protecting Free Speech While Fighting Online Hate?

Germany’s Network Enforcement Act allows people to report criminal hate speech online and requires platforms to take down the content or face stiff fines. The policy has raised questions about whether it inappropriately interferes with constitutional guarantees of a right to free speech.

While in Germany particular viewpoints on politics are regulated, in some other countries, all opposition to the government is suppressed. In Belarus, political opponents have been sentenced to prison for opposing the ruling government. 73 Other countries are taking steps to open up the free exchange of ideas, even those ideas that challenge traditional religious and cultural norms. For example, at a recent international symposium on philosophy in Saudi Arabia, the speakers and audience openly discussed ideas that are usually restricted in the country. 74

The paradox of tolerance is a frequent issue when it comes to religious expression. The expression of religious beliefs has received special consideration throughout history. Freedom of religion involves two interrelated issues: the free exercise of religion and the government establishment of religion. While it is impossible to separate the two completely, they can be distinguished for learning purposes.

The US Constitution contains two separate clauses about religion: one, that “Congress shall make no law respecting an establishment of religion,” known as the establishment clause; and two, that Congress shall make no law “prohibiting the free exercise thereof.” 75 The complicated relationship between religion and the government in the United States is a subject worthy of study in itself; the following is an outline of some of the primary issues.

In Everson v. Board of Education , a landmark case with regard to the interpretation of the establishment clause, the US Supreme Court observed that in the United States, no government should aid or hinder any religion. 76

In Everson , the court considered whether a city allowing all K–12 students to ride public transit buses for free was an unconstitutional establishment of religion because some of the students receiving free rides attended parochial schools operated by religious groups. It was argued that this amounted to an establishment of religion because, in addition to regular school classes, these students took classes in religion and were thus taught particular religious beliefs. According to this argument, the government assisted in the religious indoctrination by providing free transportation, thus putting a stamp of approval on the religious instruction. The court found that the bus rides did not violate the establishment clause because the law was neutral and beneficial for all K–12 students. If the law had only given free rides to parochial school students, it probably would have been found to violate the establishment clause, as the government would have been treating a religious institution differently and preferentially. Conversely, suppose that free rides had been denied to parochial school students and given only to students attending schools that did not teach religion. In that case, the action could be interpreted as a violation of the free exercise of religion and parental privacy in children’s education. It would violate free exercise because it would explicitly target and place restrictions on schools based on religion. This example illustrates the degree of complication in this area of the law. One must look at specific government action and ask whether it is neutral and general or explicitly benefits or intrudes on a religion.

Not all religious practices are acceptable, even in an individualist government. For example, in the United States, religious practices that are deemed abusive to children are prohibited. 77 Those who hold views anathema to most of society, such as White supremacist churches, are allowed to operate as long as they keep the expression of their opinions nonviolent and within the church. An area of controversy arises when a person running a business refuses to comply with a customer request because it violates their personal religious views, thus putting into direct conflict the constitutional protection of the free exercise of religion and the constitutional requirement for equal treatment of all persons. The US Civil Rights Act of 1964 prohibits any business that is open to the public from engaging in discrimination on the basis of race, sex, or religion. When the Civil Rights Act went into effect, some for-profit businesses argued that it violated their personal and religious principles of White supremacy by prohibiting them from barring minorities from their business or refusing to hire employees based on their race. In the early years after the act was passed, courts across the United States upheld the act against the religious arguments for White supremacy. They found a more significant community good in supporting nondiscrimination than in this view of the free exercise of religion. Today, controversies continue, with some business owners complaining that serving LGBTQ+ customers violates their religious beliefs and that to require them to serve LGBTQ+ customers would violate their right to free exercise of religion. This controversy is ongoing in the United States and around the world. 78

In western European countries, similar issues arise. All have constitutional provisions similar to the US Constitution’s religious clauses, but some have officially recognized state religions. Anglicanism, as represented by the Church of England, is the official religion of England. Up until the 20th century, people were persecuted for not adhering to the official doctrine; however, now individuals are free to practice any religion they want as long as it complies with England’s generally applicable neutral laws. 79 Around the world, restrictions on religion have been increasing. These restrictions can take two forms: government preference for a particular religion and government restriction on religious practices. Many Islamic majority countries limit freedom of religion and require residents to adhere to an established religion. A Pew Research study noted:

“Government restrictions have risen in several different ways. Laws and policies restricting religious freedom (such as requiring that religious groups register in order to operate) and government favoritism of religious groups (through funding for religious education, property and clergy, for example) have consistently been the most prevalent types of restrictions globally and in each of the five regions tracked in the study: Americas, Asia-Pacific, Europe, Middle East-North Africa and sub-Saharan Africa. Both types of restrictions have been rising; the global average score in each of these categories increased more than 20% between 2007 and 2017.” 80 (emphasis in original)

Iran's Dilemma: Should Women Wear a Hijab or Not?

Women in Iran who appear in public without wearing an Islamic hijab can be imprisoned or fined. In recent years, some Iranians have pushed back against this policy.

The growing tendency toward government restrictions on religion may be in opposing directions. For example, French law prohibits women from wearing certain items of clothing that express their religious beliefs, and the government disfavors religion. 81 In contrast, in Qatar, Islam is the official state religion, and laws require women to wear religious dress in public. Additionally, Qatar has enacted laws that restrict non-Islamic faiths by limiting worship services and prohibiting the display of non-Islamic religious symbols. 82 In China, specific religious groups have been subjected to severe restrictions, even internment in prison reeducation camps, as religious practices are considered detrimental to the country’s communist goals. 83 Thus, in both impairing religion and fostering an established religion, some countries have opted to observe localized interpretations of civil liberties with regard to religion, rather than aligning with the norms described in the Universal Declaration of Human Rights .

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10 Reasons Why Privacy Rights are Important

The right to privacy is a enshrined in article 12 of the Universal Declaration of Human Rights (UDHR), article 17 in the legally binding International Covenant on Civil and Political Rights (ICCPR) and in article 16 of the Convention of the Rights of the Child (CRC). Many national constitutions and human rights documents mention the right to privacy. In the US Constitution, it isn’t explicitly stated, but experts infer it from several amendments, including the Fourth Amendment. It outlines that people have the right “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” In many cases, the US Supreme Court has upheld the right to privacy. There are also many privacy laws designed to protect personal data from the government and corporations. The rise of the internet has complicated privacy laws and many believe that the law has fallen behind. In the United States, there is no central federal privacy law. The right to privacy also intersects with many other human rights such as freedom of expression, the right to seek, receive and impart information and freedom of association and assembly.

Why do privacy rights matter so much? Here are 10 reasons why:

#1. Privacy rights prevent the government from spying on people (without cause)

The government has a responsibility to protect its citizens, but it often crosses the line when it comes to surveillance. In 2013, Edward Snowden blew the whistle on the NSA’s spying program, bringing the issue of privacy into the spotlight. The balancing act between national security, freedom of expression, surveillance and privacy rights is tricky. It’s generally agreed upon that if the government doesn’t have a reason to spy on someone, it shouldn’t. No one wants to live in a Big Brother state.

#2. Privacy rights keep groups from using personal data for their own goals

When in the wrong hands, personal information can be wielded as a powerful tool. The Cambridge Analytica scandal is a perfect example of this. This organization used data taken from Facebook (without user consent) to influence voters with political ads. Privacy rights mean that groups can’t take your data without your knowledge/consent and use it for their own goals. In a time where technology companies like Facebook, Amazon, Google, and others collect and store personal information, privacy rights preventing them from using the data how they please are very important.

#3. Privacy rights help ensure those who steal or misuse data are held accountable

When privacy is recognized as a basic human right, there are consequences for those who disrespect it. While there are many “soft” examples of personal data use, like targeted ads, established privacy rights draw a line in the sand. Without these restrictions, corporations and governments are more likely to steal and misuse data without consequence. Privacy laws are necessary for the protection of privacy rights.

#4. Privacy rights help maintain social boundaries

Everyone has things they don’t want certain people to know. Having the right to establish boundaries is important for healthy relationships and careers. In the past, putting up boundaries simply meant choosing to not talk about specific topics. Today, the amount of personal information kept online makes the process more complicated. Social media can reveal a lot of information we don’t want certain people (or strangers) to know. Media platforms are obligated to offer security features. Having control over who knows what gives us peace of mind.

#5. Privacy rights help build trust

In all relationships, trust is essential . When it comes to the personal data given to a doctor or a bank , people need to feel confident that the information is safe. Respecting privacy rights builds up that confidence. Privacy rights also give a person confidence that if the other party breaks that trust, there will be consequences.

#6. Privacy rights ensure we have control over our data

If it’s your data, you should have control over it. Privacy rights dictate that your data can only be used in ways you agree to and that you can access any information about yourself. If you didn’t have this control, you would feel helpless. It would also make you very vulnerable to more powerful forces in society. Privacy rights put you in the driver’s seat of your own life.

#7. Privacy rights protect freedom of speech and thought

If privacy rights weren’t established, everything you do could be monitored. That means certain thoughts and expressions could be given a negative label. You could be tracked based on your personal opinions about anything. If privacy rights didn’t let you keep your work and home life separate, “thought crimes” or what you say off the clock could get you in trouble. Privacy rights protect your ability to think and say what you want without fear of an all-seeing eye.

#8. Privacy rights let you engage freely in politics

There’s a reason that casting your vote is done confidentially. You are also not required to tell anyone who you voted for. Privacy rights let you follow your own opinion on politics without anyone else seeing. This is important in families with differing worldviews. It also protects you from losing your job because of your political leanings. While you can’t control what people think about you because of your views, you do have the right to not share more than you’re comfortable with.

#9. Privacy rights protect reputations

We’ve all posted something online that we regret or done something foolish. It can come back to haunt us and ruin our reputations. Privacy rights help protect us and can give us the power to get certain information removed. The EU specifically addresses this with the “ right to be forgotten ” law. This lets people remove private information from internet searches under some circumstances by filing a request . Revenge porn, which is a violation of privacy, is a big example of personal data that can destroy a person’s reputation.

#10. Privacy rights protect your finances

Companies that store personal data should protect that information because of privacy rights. When companies fail to make security a priority, it can have devastating consequences. You can have your identity stolen, credit card numbers revealed, and so on. When you give your financial information to a specific entity, you are trusting them to respect your privacy rights.

Take a free course on privacy rights by top universities!

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About the author, emmaline soken-huberty.

Emmaline Soken-Huberty is a freelance writer based in Portland, Oregon. She started to become interested in human rights while attending college, eventually getting a concentration in human rights and humanitarianism. LGBTQ+ rights, women’s rights, and climate change are of special concern to her. In her spare time, she can be found reading or enjoying Oregon’s natural beauty with her husband and dog.

Amdt9.3 Ninth Amendment Doctrine

Ninth Amendment:

The enumeration in the Constitution, of certain right s, shall not be construed to deny or disparage others retained by the people.

Supreme Court cases from before 1965 contain little analysis of the Ninth Amendment. Litigants in earlier cases occasionally invoked the Amendment, often along with the Tenth Amendment or other provisions of the Bill of Right s, to challenge the constitutionality of various government actions. The Court dismissed those claims, usually with limited discussion. 1 to oltip-text footnotes aside" aria-hidden="true" hidden> Footnote See Ashwander v. TVA , 297 U.S. 288, 330–31 (1936) ; Tennessee Electric Power Co. v. TVA , 306 U.S. 118, 143–44 (1939) ; Roth v. United States 354 U.S. 476 , 492–93 (1957) ; Singer v. United States 380 U.S. 24, 26 (1965) . For example, in the 1947 case United Public Workers v. Mitchell , the Court rejected Ninth and Tenth Amendment challenges to the Hatch Political Activity Act. 2 to oltip-text footnotes aside" aria-hidden="true" hidden> Footnote 330 U.S. 75 (1947) . The Court explained,

The powers granted by the Constitution to the Federal Government are subtracted from the to tality of sovereignty originally in the states and the people. Therefore, when objection is made that the exercise of a federal power infringes upon right s reserved by the Ninth and Tenth Amendments, the inquiry must be directed to ward the granted power under which the action of the Union was taken. If granted power is found, necessarily the objection of invasion of those right s, reserved by the Ninth and Tenth Amendments, must fail. 3 to oltip-text footnotes aside" aria-hidden="true" hidden> Footnote Id. at 95–96 .

Concluding that Congress had the authority to enact the Hatch Act and the Act did not violate any of the prohibitions in the Bill of Right s, the Court upheld the statute. 4 to oltip-text footnotes aside" aria-hidden="true" hidden> Footnote Id. at 96–104 .

Several members of the Court examined the Ninth Amendment in greater depth in the 1965 case Griswold v. Connecticut . 5 to oltip-text footnotes aside" aria-hidden="true" hidden> Footnote 381 U.S. 479 (1965) . In Griswold , the Court held that a statute prohibiting use of contraceptives unconstitutionally infringed on the right of marital privacy . Justice William O. Douglas, writing for the Court, asserted that the specific guarantees in the Bill of Right s have penumbras, formed by emanations from those guarantees that help give them life and substance. 6 to oltip-text footnotes aside" aria-hidden="true" hidden> Footnote Id. at 484. The majority cited the Ninth Amendment along with the substantive right s protected by the First, Third, Fourth, and Fifth Amendments while discussing the penumbral right s of ' privacy and repose.’ 7 to oltip-text footnotes aside" aria-hidden="true" hidden> Footnote Id. at 481–85 . Although a right to privacy is not expressly mentioned in the Constitution, the Court concluded that banning contraceptive use by married couples impermissibly intruded on a relationship lying within the zone of privacy created by several fundamental constitutional guarantees. 8 to oltip-text footnotes aside" aria-hidden="true" hidden> Footnote Id. at 485 .

Justice Arthur Goldberg, concurring, devoted several pages to the Ninth Amendment. He opined,

The language and his to ry of the Ninth Amendment reveal that the Framers of the Constitution believed that there are additional fundamental right s, protected from governmental infringement, which exist alongside those fundamental right s specifically mentioned in the first eight constitutional amendments. . . . [A] judicial construction that this fundamental right is not protected by the Constitution because it is not mentioned in explicit terms by one of the first eight amendments or elsewhere in the Constitution would violate the Ninth Amendment. 9 to oltip-text footnotes aside" aria-hidden="true" hidden> Footnote Id. at 487–91 (Goldberg, J., concurring).

Justice Goldberg disclaimed any belief that the Ninth Amendment constitutes an independent source of right protected from infringement by either the states or the Federal Government. Rather, he explained, the Amendment shows a belief of the Constitution’s authors that fundamental right s exist that are not expressly enumerated in the first eight amendments and an intent that the list of right s included there not be deemed exhaustive. 10 to oltip-text footnotes aside" aria-hidden="true" hidden> Footnote Id. at 492 . Justices Hugo Black and Potter Stewart dissented. Justice Black wrote, I cannot rely on the Due Process Clause or the Ninth Amendment or any mysterious and uncertain natural law concept as a reason for striking down this state law. Id. at 522 (Black, J., dissenting). Justice Stewart contended, The Ninth Amendment, like its companion the Tenth, . . . ‘states but a truism that all is retained which has not been surrendered.’ Id. at 529 (quoting United States v. Darby , 312 U.S. 100, 124 (1941) ).

In the 1973 case Roe v. Wade , the Supreme Court held that the Constitution limited the ability of the states to prohibit abortion before fetal viability. 11 to oltip-text footnotes aside" aria-hidden="true" hidden> Footnote 410 U.S. 113 (1973) . The district court in Roe held that the Ninth Amendment protected the right to abortion. On appeal, the Supreme Court instead held that the right was founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, but cited both the majority opinion in Griswold and Justice Goldberg’s concurrence among opinions that recognized that a right of personal privacy , or a guarantee of certain areas or zones of privacy , does exist under the Constitution. 12 to oltip-text footnotes aside" aria-hidden="true" hidden> Footnote Id. at 152–53 . In the 2022 case Dobbs v. Jackson Women’s Health Organization , the Court overruled Roe but emphasized that its decision should not cast doubt on precedents not involving abortion, including Griswold . 13 to oltip-text footnotes aside" aria-hidden="true" hidden> Footnote No. 19-1392, slip op. (U.S. June 2022) .

to essay-1"> Jump to essay-1 See Ashwander v. TVA , 297 U.S. 288, 330–31 (1936) ; Tennessee Electric Power Co. v. TVA , 306 U.S. 118, 143–44 (1939) ; Roth v. United States 354 U.S. 476 , 492–93 (1957) ; Singer v. United States 380 U.S. 24, 26 (1965) .
to essay-2"> Jump to essay-2 330 U.S. 75 (1947) .
to essay-3"> Jump to essay-3 Id. at 95–96 .
to essay-4"> Jump to essay-4 Id. at 96–104 .
to essay-5"> Jump to essay-5 381 U.S. 479 (1965) .
to essay-6"> Jump to essay-6 Id. at 484.
to essay-7"> Jump to essay-7 Id. at 481–85 .
to essay-8"> Jump to essay-8 Id. at 485 .
to essay-9"> Jump to essay-9 Id. at 487–91 (Goldberg, J., concurring).
to essay-10"> Jump to essay-10 Id. at 492 . Justices Hugo Black and Potter Stewart dissented. Justice Black wrote, I cannot rely on the Due Process Clause or the Ninth Amendment or any mysterious and uncertain natural law concept as a reason for striking down this state law. Id. at 522 (Black, J., dissenting). Justice Stewart contended, The Ninth Amendment, like its companion the Tenth, . . . ‘states but a truism that all is retained which has not been surrendered.’ Id. at 529 (quoting United States v. Darby , 312 U.S. 100, 124 (1941) ).
to essay-11"> Jump to essay-11 410 U.S. 113 (1973) .
to essay-12"> Jump to essay-12 Id. at 152–53 .
to essay-13"> Jump to essay-13 No. 19-1392, slip op. (U.S. June 2022) .

Essay Service Examples Social Issues Privacy

Essay on Right to Privacy

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Hindman, E. B. (2003). The princess and the paparazzi: Blame, responsibility, and the media's role in the death of Diana. Journalism & Mass Communication Quarterly, 80(3), 666-688.
Davies, N. (2019). How the private lives of famous were invaded. Retrieved from https://www.theguardian.com/media/2009/aug/31/data-protection-privacy-ico-celebrities
Hassan, G. (2011, July 15). Can celebrities expect privacy? Retrieved from https://www.bbc.com/news/entertainment-arts-14151678
Kiss, J. (2017, February 21). Does technology pose a threat to our private life? Retrieved from https://www.theguardian.com/technology/2010/aug/21/facebook-places-google
Harvard Health Publishing. (2018, May 16). Anxiety and physical illness - Harvard Health. Retrieved from https://www.health.harvard.edu/staying-healthy/anxiety_and_physical_illness

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Right to Privacy Essay
Right to Privacy in the United States
The Right to Privacy: Concept Definition
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Right to Privacy Essay
🎉 Right to privacy essay. Victim’s Right to Privacy Essay Example [540

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The Right to Privacy
Article 12 of the Universal Declaration of Human Rights states that: "No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.".
The Right to Privacy: Personal Freedom in The Digital Age
The right to privacy is the right to be left alone, to keep one's personal information and life choices free from unwanted intrusion or surveillance. It encompasses the right to control one's personal data, maintain confidentiality in communications, and make autonomous decisions about one's body and lifestyle. At its core, the right to privacy ...
Essay on Right To Privacy
The right to privacy is important for many reasons. First, it allows us to be ourselves without fear of judgment. We can think, speak, and act in ways that reflect our true selves when we know that we are safe from prying eyes. Second, it helps us maintain our dignity. When our private lives are exposed without our consent, it can make us feel ...
Right to Privacy Essay
Article12 of the Universal Declaration on Human Rights and Article17 of the International Covenant on Civil and Political Rights provides for the right of privacy. India is rapidly developing into a digital economy, so cybersecurity and privacy have been an issue now, i.e.,
PDF The right to privacy in the digital age
and Political Rights (art. 17), the European Convention on Human Rights (art. 8), the African Charter on Human and Peoples' Rights and the Arab Charter on Human Rights (art. 16, 8). The concepts of privacy and private life are frequently used interchangeably. When the right to privacy and other human rights are at odds, the proportionality ...
The Right to Privacy
The principle which protects personal writings and any other productions of the intellect or of the emotions, is the right to privacy, and the law has no new principle to formulate when it extends this protection to the personal appearance, sayings, acts, and to personal relations, domestic or otherwise. 40.
The Right to Data Privacy: Revisiting Warren & Brandeis
While difficult to enact, a broad express federal right could provide significant advantages, such as (1) establish a baseline right from which states and Congress could add consistent legislation; (2) enable courts to restrict clear instances of privacy abuse without waiting for Congress to act, which seems especially helpful given the ...
Privacy matters because it empowers us all
It's not all bad news, though. Yes, institutions in the digital age have hoarded privacy power, but we can reclaim the data that sustains it, and we can limit their collecting new data. Foucault argued that, even if power constructs human subjects, we have the possibility to resist power and construct ourselves.
Privacy
The right to privacy gives an individual, ... It was in that essay that, for the first time, the right to be left alone was described as a constitutional right to privacy, in the sense that information about a person is worthy of protection even when it involves something that occurs in public (see §1.2).
Chapter 22: The Right of Privacy
The right of privacy—the right to be left alone, as Justice Louis Brandeis once defined it—is fundamental to our understanding of freedom, but nowhere does the Constitution mention it. When Congress submitted the Bill of Rights to the people for ratification in 1789, privacy was not listed as a liberty that required protection from government.
The Right to Privacy (article)
[11] Some decades later, in a highly cited article of his own, Melville B. Nimmer described Warren and Brandeis' essay as "perhaps the most famous and certainly the most influential law review article ever written", attributing the recognition of the common law right of privacy by some 15 state courts in the United States directly to "The Right ...
Privacy
A contemporary collection of essays on privacy provides strong evidence to support this point (Paul et al., 2000). The contributing authors examine various aspects of the right to privacy and its role in moral philosophy, legal theory, and public policy. They also address justifications and foundational arguments for privacy rights. 1. History
Right to Privacy: Constitutional Rights & Privacy Laws
The right to privacy refers to the concept that one's personal information is protected from public scrutiny. U.S. Justice Louis Brandeis called it "the right to be left alone." While not ...
Personal Liberty Essay
Thus, in Roe v. Wade, Justice Harry Blackmun stated: "This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass ...
The Concept of the Right to Privacy
Ernest Van Den Haag defines privacy as, the exclusive access of a person (or other legal entity) to a realm of his own. The right to privacy entitles one to exclude others from (a) watching, (b) utilizing, (c) invading (intruding upon, or in other ways affecting) his private realm. 39.
4.3 The Right to Privacy, Self-Determination, and the ...
Merriam-Webster's Dictionary of Law defines the right to privacy as "the right of a person to be free from intrusion into or publicity concerning matters of a personal nature." 32 Another way to define the right to privacy is "the right to be left alone." 33 In a liberal democratic system, privacy is a space separate from public life ...
10 Reasons Why Privacy Rights are Important
The right to privacy is a enshrined in article 12 of the Universal Declaration of Human Rights (UDHR), article 17 in the legally binding International Covenant on Civil and Political Rights (ICCPR) and in article 16 of the Convention of the Rights of the Child (CRC). Many national constitutions and human rights documents mention the […]
Protecting Privacy Under the Fourth Amendment
The Fourth Amendment' has explicitly been held to protect personal privacy2 since at least the mid-nineteenth century.3 Experts in many fields, including law, psychology, philosophy and sociology, believe that privacy is vitally important to all human beings,' and the Supreme Court has. 1. The Fourth Amendment provides that: The right of the ...
The right to privacy in the digital age
The right to privacy in the digital age. 01 November 2013. In its resolution on the promotion and protection of human rights on the internet, in July 2012, the Human Rights Council affirmed "that the same rights that people have offline must also be protected online, in particular freedom of expression". It was hailed as the first-ever UN ...
The Right to Privacy Essay
Although the Bill of Rights does not explicitly state anything about the right to privacy, a combination of its sections was used as the framework for establishing the right ("Griswold v. Connecticut (1965)," 2007).
Privacy in the 21st Century
The future of privacy looks grim. Nonetheless, even in the age of governmental surveillance and data markets, privacy is critical to a well functioning society. It ensures the social benefits associated with voluntary intimacy, and it protects freedom of consciousness. In extenuating circumstances, however, the public must sacrifice a degree of ...
Ninth Amendment Doctrine
On appeal, the Supreme Court instead held that the right was founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, but cited both the majority opinion in Griswold and Justice Goldberg's concurrence among opinions that recognized that a right of personal privacy, or a guarantee of certain areas ...
Essay on Right to Privacy
The right to privacy restricts the government and private individuals from intrusion into their privacy (Tang & Baumeister, 1984). The right to privacy also seeks to prevent the public from scrutinizing one's personal information. While the right has not been expressly stated in the constitution, the right to privacy is protected by various laws.