A scholarly law review article talks about the right to privacy in the face of new technology encroachments and speaks of “the right to be let alone.” When was this article written? This year? Last year? No, in 1890, and think of all the technological advancements that jeopardize the right to privacy since then!
The article by Samuel Warren and Louis Brandeis (who later became a renowned U.S. Supreme Court Justice) was titled “The Right to Privacy,” 4 Harvard Law Rev. 193 (1890). It was published in the wake of the development of the portable camera. Obviously, with movable cameras, people could be captured on film doing all sorts of things as never before. This raised a panoply of privacy concerns and heightened the need for the development of laws to address those issues.
Fast-forward 128 years to now and these concerns are exponentially greater. And true, a number of privacy laws have been put on the books since the law review article was published, but as technology continues to advance at warp speed, the law struggles at a relatively glacial pace to keep up.
Currently, privacy can be eviscerated in so many ways, including: government surveillance of the contents of emails and other electronic communications; government analysis of cell data to track movements; company monitoring of digital footprints showing user purchasing and other habits; GPS technology to pinpoint personal locations; snooping from the air by drones; fixed cameras in many indoor and outdoor locations to observe personal conduct; and the ubiquity of smartphones and their ability practically everywhere to record other people by way of photos, videos and audio.
As a sad aside, Samuel Warren committed suicide in 1910. His family covered that up for a while, because of privacy concerns.
It is widely regarded that Brandeis was the chief author of the law review article. What would he say now with respect to the many threats to privacy we now face? Likely, what he said before — we still need to preserve “the right to be let alone.”
Eric Sinrod (@EricSinrod on Twitter) is a partner in the San Francisco office of Duane Morris LLP, where he focuses on litigation matters of various types, including information technology and intellectual property disputes. You can read his professional biography here. To receive a weekly email link to Mr. Sinrod’s columns, please email him at ejsinrod@duanemorris.com with Subscribe in the Subject line. This column is prepared and published for informational purposes only and should not be construed as legal advice. The views expressed in this column are those of the author and do not necessarily reflect the views of the author’s law firm or its individual partners.