The Updated Right of Privacy

-- By RickSchwartz - 07 Mar 2009

This paper is very loose update/adaptation of Warren and Brandeis' "The Right of Privacy," but with a more satirical approach to the development of privacy in history, given that I take the right's adoption as my starting point. In terms of the language parodied, I diverge liberally given my narrower range of history and word limit.

Living in a Material World

That the individual shall have full protection in privacy and personality is a principle as old as Griswold, but it has been found expedient from time to time to circumscribe the exact nature and extent of such protection. Political, social, and technological changes entail the recognition of new interests, and the Constitution, in its eternal death, has contracted to meet the new demands of government and industry. In early times, the law was fit to give protection against interference with property and communications, with places and pamphlets. The Fourth Amendment served only to secure the subject from unreasonable physical searches and seizures; privacy meant freedom from actual coercion and public exposure; the right of publicity secured to the individual the commercial exploitation of his name, image and likeness; and the right to speech only secured to the individual the the right to speak anonymously when there is no accusation of fraud. Later, there came recognition of the state's authoritarian nature, of its desire to prosecute with the most evidence available. Gradually, the scope of these rights contracted, and now the right to privacy has come to mean the protection of physical autonomy and seclusion only insofar as required by specific constitutional guarantees,(1) and only insofar as the government is culpable in its violation.

With the recognition of the legal value of seclusion, the protection against the invasion of the home was extended to prohibit intrusion into a physical place but still limited by the notion of place. From the action of intrusion upon seclusion grew the right of privacy.(2) Much later, the "trespass" doctrine was replaced with the qualified "reasonable expectation of privacy." So regard for the state's "legitimate needs of law enforcement" soon extended the exception beyond the application of the rule. The reasonableness analysis, upon the assurance that the courts would "authorize the carefully limited use of electronic surveillance," prohibited physical intrusions into places where intimacy might be injured, but did not find a problem with intrusion into the intimacy itself. Occasionally the law halted, as in its refusal to exempt thermal-imaging devices from treatment as intrusions on the "intimate details" of the home. But even here, law enforcement needs were met, as the reasonable expectation could no longer be expected once the tools of surveillance were in public use.

Notes

1 : Consistent with Robert Bork's critique of Griswold v. Connecticut, courts have begun withdrawing the extent of privacy protections absent a "reasonable expectation of privacy" which usually requires the independent invocation of some specifically enumerated constitutional right, such as the First, Third, Fourth, Fifth, or Ninth Amendment, upon which the "zone of privacy" was premised.

2 : Prosser refined Warren and Brandeis' thesis and argued that "the right to privacy" could be found from the recognition of four separate torts (appropriation of identity, casting a false light in the public eye, public disclosure of private facts, and intrusion upon seclusion), all unified by the underlying "right to be left alone."