IN their famous Harvard Law Review article of December 1890, Boston law partners Louis Brandeis and Samuel Warren proposed that citizens have an inherent right to privacy.
Just as the law recognized that people had the right to control distribution of their written words, the two attorneys identified the more general personal “right of the individual to be let alone.” Today, as we encounter new inventions ranging from Google Glass to cameras tracking our movements in public places, privacy rights face new challenges and it is instructive to explore how legal recognition of individual privacy came about in the first place.
Brandeis’ and Warren’s theory owed much to a dancer named Marion Manola, who appeared in tights in a Broadway comic operetta. In that era, exposing the shape of one’s legs in public was rather risqué and although Ms. Manola was willing to do so during her live revue, she did not want photos of her in costume available for public consumption. Her stage manager disagreed and staked out a performance to take flash photographs of Manola clad in tights to advertise the show.
When the ads appeared in local papers, Manola sued and obtained an injunction “against the display of photographs of the actress in this style of stage costume.”
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From this and a handful of other cases involving unauthorized distribution of engravings and private diaries, Brandeis and Warren developed the notion of legal protection against invasions of privacy. At the dawn of a new media age, they railed: “The press is overstepping in every direction the obvious bounds of propriety and of decency.”
Fast-forward 38 years to 1928. In a case involving the federal government wiretapping months of telephone conversations of a Seattle bootleg operation in order to enforce the National Prohibition Act, U.S. Supreme Court Chief Justice William Howard Taft — the former president — found that the police had conducted no illegal search or seizure in this case. His reasoning was that, because unlike opening sealed letters, telephone conversations occur over a network of wires and wiretapping does not constitute “entry” into anyone’s home or property.
Justice Brandeis disagreed. Writing in dissent, he focused on the new technology of long-distance telephony and found that this means of communication posed an even greater danger for the government to snoop on private conversations in violation of the Fourth Amendment. He asked, “Can it be that the Constitution affords no protection against such invasions of individual security?” That dissent in Olmstead v. United States
marked a step in the emergence of judicial recognition of a general privacy right that accompanies the Constitution’s other protections.
Enter Google Glass. Some time in the next year or two, tens of thousands of oddly bespectacled Americans will eagerly embrace a technology enabling them to walk down a street and, using voice commands, snap photos and video of what they see in front of them. The technology will make it easier to catch candid moments, follow on-screen directions, and ask for information about one’s environment.
While strolling in New York, Google suggests, one can simply ask out loud, “How long is the Brooklyn Bridge?” and the answer will be retrieved by the network-connected mini-computer in the headset and displayed on the glass screen.
Critics argue that the technology exposes anyone in the path of a Google Glass wearer to unauthorized photography and monitoring. And while courts have generally held that people appearing in public places don’t have a right not to be photographed, Google Glass threatens to elevate privacy violations to an entirely new level. Already, a bar in Seattle has preemptively banned the technology and others have voiced concern about privacy in men’s rooms, among other places.
These worriers have a legitimate point. The law of privacy in our country is not much evolved beyond 19th-century technology. While specific statutes ban specific activities such as warrantless wiretapping, we enjoy no general right to stroll outside our homes inside a reasonable zone of privacy.
On the Internet, the vast majority of citizens willingly accept privacy policies that allow for a range of Web-tracking activity. Google Glass will highlight our current lack of privacy protection and spark a needed debate.
Alex Alben lives in Seattle. His latest book is “Analog Days — How Technology Rewrote Our Future.” You can email him at firstname.lastname@example.org