A Short History of Privacy : What everyone needs to know in 10 minutes Part II – Shift In Principles [Issue]
Introduction:
This series is devoted to privacy law as it pertains to communications. However, this post is going to take a slight detour and look at a legal theory created by Warren and Brandeis. In the time line it is inside the period shared with the telephone. So this post is a bit out of order as part I ends with the telegraph and part III will cover the telephone. Also, this post will have nothing to do with communications. It will cover a shift in the legal principle that underlies the theory of privacy law. It will move from the 'your home is your castle' principle of the 4th amendment to the more general principle of the right of the individual 'to be let alone'. By the end of Part III, this new principle will be applied to wiretapping protections for the telephone.
The term tort will arise many time in this post and therefore it should be defined. According to Wikipedia, “a tort, in common law jurisdictions, is a civil wrong that unfairly causes someone else to suffer loss or harm resulting in legal liability for the person who commits the tortious act.”
A (very) Short History of Privacy (as it applies to legal principles):
In 1890, Warren and Brandeis published “The Right to Privacy” in The Harvard Legal Review. This article has been praised by many in the legal profession and is considered highly influential. The raison d'être of this article was dealing with the new technologies of newsprint and the instant camera which was both experiencing rapid growth in popularity at the time. The combination of these 2 technologies had led to an explosion of unnecessarily sensational articles designed to titillate by embarrassment. This 'yellow journalism' focused on scandal and gossip and many times overstepped what was considered at the time to be decent and proper for public discourse. The ability to disseminate information in mass combined with the ability to visually record an instant in time threatened to make the invasion of the individual's private lives common place.
The current law of the time was not up to the task of defending privacy from this sort of attack. To deal with these new threats, Warren and Brandeis looked for existing principles of law that could be invoked to protect the individual's privacy. A few different types of law that were considered was; defamation law, contract law, and property law. Defamation law was capable of defending against libel and slander. These laws however, only protect against lies and not against disseminating a person's private information. Contract law was capable of defending the privacy of all parties involved in a contract but was unable to protect against 3rd parties outside the contract. Property law was also considered as a basis for the new privacy law as the idea of tangible property had already been expanded to intangible items such as intellectual property.
In the end, Warren and Brandeis concluded that the common law could be extended to protect privacy from the sort of eavesdropping that was becoming common place in the age of news print and the instant camera. To do so requires a shift from viewing privacy protection as a limit on the intrusion of the home, as it is considered in the 4th amendment to the more general right of the individual “to be let alone”. In the words of Warren and Brandeis, “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.” Since this is a common law solution, the remedy is “an action of tort for damages.”
The Georgia Supreme Court acknowledged a common law tort for privacy invasion in 1905 in Pavesich v. New England Life Insurance Co. In doing so the court set the first president for using invasion of privacy as a cause of action in a tort case. This case was over an image of the plaintiff being used by the life insurance company in an advertisement without consent. The court found that a “right of privacy in matters purely private is . . . derived from natural law.” The courts reasoning follows: ”One who desires to live a life of partial seclusion has a right to choose the times, places, and manner in which and at which he will submit himself to the public gaze. Subject to [certain] limitation[s] … , the body of a person cannot be put on exhibition at any time or at any place without his consent. ... It therefore follows from what has been said that a violation of the right of privacy is a direct invasion of a legal right of the individual.”
Conclusion:
This post discusses the shift in legal principles that set the foundations for the laws that protect privacy outside of the home. This allows for the protection of the privacy of messages passing through communications systems owned by 3rd parties even though the systems are under the control of 3rd parties and are outside the home.
Note:
I have tried to include every case or piece of legislation that has had a significant impact on privacy up to this point. If anyone knows anything that I overlooked please let me know. The rest of this story is coming soon.
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References:
This reference is a great overview of privacy law history in general:
Daniel J. Solove, A Brief History of Information Privacy Law in PROSKAUER ON PRIVACY, PLI (2006) http://scholarship.law.gwu.edu/cgi/viewcontent.cgi?article=2076&context=faculty_publications
This reference is on the tort basis of privacy law:
Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 HARV. L. REV. 193 (1890)
Part I of this series:
https://steemit.com/privacy/@voice-of-reason/a-short-history-of-privacy-what-everyone-needs-to-know-in-10-minutes-part-i-issue