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The Right to Privacy

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Citation Edit

Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193 (1890) (full-text).

Overview Edit

Warren and Brandeis wrote their famous article in response to two qualitative shifts in their society: technology and societal appetite. The technological advance took the form of a new handheld camera. Earlier cameras were large and slow and required the intentional participation of the subject. The new cameras were smaller and faster and made it easy for one individual to photograph another without permission or even awareness. At the same time, “gossip” newspapers erupted in popularity creating a vacuum for content about individual personal lives. New information technology (the camera) and new uses of personal information (the papers) combined to create a new situation for individuals (the publication of unintended, personal information). Warren and Brandeis responded by asserting an individual right to control the collection and use of information that would restore the proper location of control to the individual data subject.[1]

Warren and Brandeis specifically emphasized the right to keep personal information outside of the public sphere.[2]

Their work laid the foundation for the common law development of privacy, understood by some as a broader "right to be let alone,"[3] including a right to control personal information, during much of the 20th Century.

References Edit

  1. Privacy and Biometrics: Building a Conceptual Foundation, at 28.
  2. “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.” 4 Harv. L. Rev. at 198.
  3. Id. at 193. Not all courts and scholars have viewed privacy as a broad “right to be let alone.” Dean William Prosser examined common law privacy cases and argued that the common law right of privacy is confined to four tort causes of action: intrusion upon seclusion, public disclosure of private facts, putting an individual in a false light, and appropriation of an individual’s name or likeness. See William L. Prosser, "Privacy," 48 Cal. L. Rev. 383, 389 (1960).

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