Warren and Brandeis on privacy

We talked about Warren and Brandeis’s case for a right to privacy. Specifically, we noted the following:

1. They claim the right to privacy is recognized in the common law, that is, by judges without specific legislation (Warren and Brandeis 1890, 195).

2. They think privacy consists in having control over some combination of the following (there is a summary statement on p. 216):

   1. publication of one’s thoughts and feelings (pp. 198, 205),
   2. publication of information about one’s private life (p. 201),
   3. publication of images of oneself (p. 211), and
   4. facts about oneself that are not immediately obvious, such as a speech impediment or difficulty with spelling (p. 215).

3. They claim that an invasion of privacy in these areas causes psychological distress and assert that we need “some retreat from the world” (p. 196).

4. While they maintain that judges decide cases in ways that protect privacy, they also argue that the judges have erred in relying on property rights or contracts in their decisions. The bulk of the article is devoted to showing that defamation, property, and contract law do not provide adequate protection for privacy.

Our discussion

We talked at some length about what is private, what kind of privacy is valuable, and what rights to privacy we think we have.

Our discussion suggested the broad range of things covered by privacy: just sketching out the examples forced me to use the second black board! Here are some of the things that we thought are generally regarded as private (whether rightly or wrongly).

1. Spaces, such as the home.
2. Personal information, e.g. health or financial records, information about one’s past (like a felony convictions), one’s thoughts, one’s behavior in private, … anything that you might tell someone else is “none of your business.”
3. Conversations, even when in public. (Think of someone sneaking up behind you to listen in.)
4. Personal images, especially involving nakedness. (This is surely culturally specific, but that’s OK: we’re talking about our understanding of privacy.)

Why is there a right to privacy?

Warren and Brandeis analyze the decisions of courts. They find that the courts have protected privacy by using other parts of the law, such as the law of defamation, property, or contract.

In each case, they argue, the decision would make more sense if it directly invoked a right to privacy.

Whether you find their analysis persuasive hinges on what you think of the letter case, in my opinion. Suppose A sends a letter to B containing private information about A and that B publishes the information in the letter. Warren and Brandeis think that B would have violated A’s right to privacy. The violation cannot consist in a violation of A’s property rights because the letter is no longer A’s property: A sent it to B. It can’t be that B did anything wrong in acquiring the information either: again, A sent the letter to B. Nor can the violation consist in the violation of a contract between A and B: B does not consent to anything by opening a letter (they say). As Warren and Brandeis see it, A’s right is the right to control publication of the information. That is what they call a right to privacy.

A structurally similar example involves what we call revenge porn. C gives D a racy photograph of C that D posts on the internet when C and D break up. That strikes many people as a violation of C’s privacy. But it’s not because D didn’t own the picture; it’s because of the information in the picture, namely, what C looks like naked. If you think the right to control the information about what C looks like naked remains in C’s hands, then you are in substantial agreement with Warren and Brandeis.

Leo raised a question about their use of intellectual property law: they claimed the right to intellectual or artistic property stems from the right to privacy, rather than going the other way around. As Leo pointed out, you usually want to sue under property law because your award will be greater. I think that is compatible with what Warren and Brandeis were saying: intellectual property is a distinct set of rights that are derived from the right to privacy. But I’m not sure.

Claire said something so awesome that I want to record it. She described the right of privacy as “a right to curate our identity.” That’s just cool.

Some history

This article is one of the most cited law review articles ever. Why did they write it? One popular story is that Warren was peeved about the way his daughter’s wedding was covered in the newspapers (Prosser 1960, 48). However, since Warren’s daughter was seven years old at the time, this is not true (Barron 1979, 893). (I had previously quoted the story about the wedding here; I deleted it when I learned it was false. - mjg December 19, 2019.)

Warren and Brandeis were also concerned that “the latest advances in photographic art have rendered it possible to take pictures surreptitiously” (211).

They weren’t exactly wrong: that was possible.

But it would have been difficult. (Unidentified photographer with camera, Library of Congress.)