This entry features the grand-daddy of American privacy, Samuel Warren and Louis D. Brandeis’ “The Right to Privacy.”

Today, this defense of privacy is in the public domain. You can read it here. You can read of it here, here, or, well, everywhere.

Given that this is a well-researched and frequently discussed law document, I’ll keep my comments here to a minimum.

Firstly, it came to me as something of a surprise that Warren and Brandeis’ defense of privacy is based not on the (familiar) fear of a police-state (see Big Brother State). Instead, Warren and Brandeis center their discussion on something a bit more subtle, but, now, a bit more urgent, the challenge that technological development pose to “private and domestic life.”

Recent inventions and business methods call attention to the next step which must be taken for the protection of the person, and for securing to the individual what Judge Cooley calls the right “to be let alone.” Instantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life; and numerous mechanical devices threaten to make good the prediction that “what is whispered in the closet shall be proclaimed form the house-tops.”

(Prescient, huh?)

Developments to the camera, for example, render impotent the legal conception of privacy as centered on a notion of contract. Warren and Brandeis note that

While, for instance, the state of the photographic art was such that one’s picture could seldom be taken without his consciously “sitting” for the purpose, the law of contract or of trust might afford the prudent man sufficient safeguards against the improper circulation of his portrait; but since the latest advances in photographic art have rendered it possible to take pictures surreptitiously, the doctrines of contract and of trust are inadequate to support the required protection.

So, if not a contractual or property based right, what is the right to privacy? For the writers, as near as this non-law student can tell, it is the right to “an inviolate personality,” or “the belief that a human being’s innermost convictions, communications and tastes were private, to be protected from monarchs and governments as well as prying gossip.”

So, as near as I can tell, that’s it.   Except, well, when thinking about the Web & privacy : “the right to privacy ceases upon the publication of the facts by the individual, or with his consent.”

It is fairly clear that we can extrapolate an argument for Warren and Brandeis’ “The Right to Privacy” against the infiltration of other people’s digital cameras and camera phones into our daily lives.  But when we put something online, in a FaceBook profile, for example, are we publishing our inviolate personalities?  And what to do we do with all those other breaches of privacy, the one’s not put to use to gossip about us (Warren and Brandeis rail against gossip!) or publicize us, but to get to know us … our habits … for the sake of selling to us better?

A) Dunno
B) Dunno
C) Dunno