TIV. Privacy Rites

It is a commonplace in theoretical discussions of privacy that as a category, as a value, and as a right, privacy is at once widely affirmed but apt to be confused. The opening sentence of Alan Westin’s classic 1967 text on the subject, Privacy and Freedom, provides a representative expression of the point: “Few values so fundamental to society as privacy have been left so undefined in social theory or have been the subject of such vague and confused writing.” Patricia Boling sketches some of the contours of this perplexity when she notes that “[a] woman asserting a ‘right to privacy’ that allows her to have an abortion does not mean the same thing by privacy as a public figure who objects to media coverage of his personal affairs, and neither of these claims is much like the notion of privacy at stake in privatizing public services or allowing businesses to be free from pollution standards or workplace safety regulations.”

There is, of course, no explicit recognition or guarantee of a right to privacy in the United States Constitution. Because of this, and because it is impossible to discern any kind of ready coherence in the extraordinary diversity of constitutional cases nonetheless invoking this right over its long and convoluted legal history, the evolution of the right to privacy has been deeply controversial and its several applications in American jurisprudence likewise deeply vulnerable to criticism even as the affirmation of this right has been widespread and passionately felt.

Certainly, Fourth Amendment proscriptions against unreasonable searches and seizures have provided at best a shaky foundation for the ongoing articulation of the right to privacy. For one thing, the Amendment’s language of “security” and, especially, of “seizure” conjures the specter of a physical violation that has had a troubled applicability to the often “intangible” injuries to personhood and peace of mind, to character and reputation, and to the scene of decision itself that the law has sought to clarify and remediate through the invocation of a privacy right, all the while freighting the support of private personhood with the special urgency that bodily vulnerability inevitably inspires.

A further difficulty, this time exacerbated by the Fourth Amendment’s language of security from unreasonable “searches” and the imprecision of its proper scope of applicability (that is to say, to “persons, houses, papers, and effects,” etc.), is that discussions of privacy and the claims made in its name will differ radically in the level of generality at which they are pitched, sometimes investing themselves strictly in the contours of individual bodies, as we have seen, but also sometimes directing themselves instead to broader spheres of privacy encompassing a private room or household, an intimate relationship, the “family” in its various construals, or even, as happens in some rather extraordinary market libertarian formulations, an idealized totality of “non-coercive” contractual relations imagined to be co-extensive in principle with the scope of the public realm itself.

And finally, the emphasis on the Fourth Amendment’s language concerning the “unreasonable,” which preoccupies the pragmatic cost-benefit analyses of many recent discussions and decisions that would weigh privacy rights and expectations in the balance of the needs of public safety, law enforcement, or for “Homeland Security” introduce yet another host of intractable interpretative befuddlements.

The earliest significant reference in American legal discourse to a concern for privacy is likely Judge Thomas Cooley’s 1880 treatise on torts, which included among its formulations the portentous phrase the “right to be let alone.” This phrase would return a decade later, of course, as Samuel Warren’s and Louis Brandeis’s profoundly influential formulation of 1890 in “The Right to Privacy” (the text of which cites Cooley’s treatise explicitly ), which I have already discussed in the previous section, and would return yet again in the celebrated dissent Brandeis would write later still in 1928 for the case Olmstead vs. United States, about which I will say more in a moment. Just one year after the publication of Cooley’s treatise, a woman who charged that she had been observed during childbirth without her consent and that this constituted a kind of battery was granted relief by the unanimous decision of the Michigan Supreme Court in the case DeMay vs. Roberts in language which invoked instead her “legal right to the privacy of her apartment at such a time… [which] the law secures to her… requiring others to observe it, and to abstain from its violation.”

Judith Wagner DeCew, in her book In Pursuit of Privacy: Law, Ethics, and the Rise of Technology, recounts a story (which has been disputed ) from Dean William Prosser that one of Samuel Warren’s original motivations for writing “The Right to Privacy” was a desire to articulate concerns occasioned by unwelcome newspaper publicity during his daughter’s wedding. If there is any truth to the story, she suggests, “it highlights the early link between technological advances, in this case the use of large-scale media coverage through newspapers, and growing worries about protecting individual privacy.” Of course, this is a connection that would also interest me. But beyond this, it intrigues me to note as well that, together with the conjuration of the scene of childbirth and unwelcome scrutiny in the DeMay vs. Roberts case, these worries about an increasingly intrusive mass-media enabled by new technological development for the Warren and Brandeis formulation suggests rather extraordinarily that the peculiar constellation of concerns with media, surveillance, and reproductive life that define the most fraught applications of the right to privacy in the present day have been its special preoccupation from its very beginnings.

In 1905, the Georgia Supreme Court was the first to explicitly affirm a right to privacy in its decision in Pavesich vs. New England Life Insurance Company. Given the novelty of this right to privacy that they were invoking it is perhaps understandable, but it still seems somewhat incredible, that the Court cited “its foundation in the instincts of nature” and “therefore… natural law,” considering that “the invasion of the rights of his person” that so offended “instinct” and “nature” involved in this case the use of a person’s photograph without his consent.

In the 1928 case Olmstead vs. United States, the majority decided that telephone conversations were not protected from surreptitious eavesdropping since no outright physical intrusion was necessarily involved in cases of wiretapping (a technological development in any case unanticipated by the Framers). It is the famous dissent written by Justice Brandeis more than the majority decision itself that is rightly remembered from the case. The formulation of the right to privacy in the Brandeis dissent, itself relying heavily on the language of the article he had written with Warren nearly forty years earlier, eventually prevailed when nearly forty years later, in 1967, his view formed the basis of the decision in Katz vs. United States where “a reasonable expectation of privacy” protecting “people, not places” was affirmed in another case involving electronic eavesdropping. This overturned the prior decision written by Chief Justice (and former President) Taft in Olmstead which in cleaving close to a “literal” reading of the Fourth Amendment as securing us against only specifically physical forms of trespass had in fact thereby endorsed an unprecedented expansion of intrusive surveillance precisely by ignoring the extent to which technology had itself expanded the forms and intensities of surveillance.

The case is therefore not only historically significant as an episode in the broader story I am telling here, but provides an instructive object lesson highlighting both the dangers and demands introduced by technological development for the deliberative adaptation of inherited values and institutions to shifting contemporary realities. And so, just as wiretapping represented an unprecedented technological amplification of our capacity for surveillance that compelled a deep rethinking of just what might be imagined to be vulnerable in principle to “unreasonable searches” in the first place, so too (for example) the present-day accumulation of commonplace data about individuals might seem a trivial matter until digital networked media render this data widely and easily available, or the application of sorting and modeling software might disclose from it disturbingly revealing (or misleading) profiles of the individuals about whom apparently innocuous data was gathered.

In 1965, in the case Griswold vs. Connecticut, the Supreme Court invalidated a state ban on the possession or use of, or the dissemination of information about, contraceptive devices and substances. The result of the Court was affirmed by a majority of seven to two, but the extraordinary range of statements by the various Justices that provided differing rationales for the decision prefigured the special controversy that has subsequently attached to the decision, and to the series of decisions that have followed its lead, applying the right to privacy to invalidate state laws regulating a number of activities and forms of intimate association: in 1967, in Loving vs. Virginia, to overturn a statute against interracial marriage, in 1969, in Stanley vs. Georgia, to allow the possession and enjoyment of “obscene” materials in the home, in 1972, in Eisenstadt vs. Baird to permit the distribution of contraceptive devices, and then, probably most controversially, the following year in 1973, in Roe vs. Wade, to protect the right of a woman to choose to terminate her unwanted pregnancy by abortion.

Justice William O. Douglas’s opinion for Griswold has been the most influential statement emerging from the decision –- and possibly the most notorious in a long history of controversial formulations of the right to privacy as well. Morris Kaplan quips that an entire “generation of law professors has written its way to tenure by making fun of Douglas’s rhetoric in Griswold.” In his opinion, Douglas proposed that the right to privacy was in fact a “penumbra” “emanating” from the Constitution rather than finding explicit statement in it – and the vagueness of his language here seems in retrospect almost to welcome outright the controversies of the decision’s aftermath.

But it would surely be profoundly misguided to doubt the seriousness and sobriety of the thought that inspired Douglas’s turns of phrase in Griswold. Although it would have been possible to justify the decision exclusively through a reading of the Fourth Amendment (arguing, say, that the enforcement of the Connecticut statute would necessarily involve unconstitutional searches of homes and intrusive surveillance of intimate conduct) as had nearly always been the case in the significant privacy formulations that preceded it, Douglas deliberately proposed a wider argument instead, invoking as he did in his dissent in 1959, in Frank vs. Maryland, the First Amendment protection of free expression and the Fifth Amendment’s protection against self-incrimination, as well as the Fourth Amendment’s protection of one’s person, house, papers, and effects.

In the somewhat more sober language of that dissent he insisted that “[t]hese three amendments are indeed closely related, safeguarding not only privacy and protection against self-incrimination, but 'conscience and human dignity and freedom of expression as well'." By multiplying the dimensions in which he discerned a Constitutional support of the right to privacy Douglas proposed that this right in particular was the register through which he discerned a broader Constitutional support of human personhood as such, and especially for the public conditions on which personhood properly relies for its maintenance, intelligibility, and force.

The subsequent decisions arising out of Griswold were not only applications but clarifications of its formulation, culminating in the rather more systematic 1977 decision I mentioned briefly in the previous section, Whalen vs. Roe, which explicitly delineated parallel informational and decisional dimensions of the right to privacy. Despite this amplification of its clarity, however, the definitive formulation of the right to privacy remains elusive, and applications of the right to privacy are almost inevitably controversial. The failure of the Court to overturn Georgia’s consensual sodomy laws on privacy grounds in 1986 in the notorious Bowers vs. Hardwick provides a case in point. And the consequent overturning of that decision in 2003 in the case Lawrence vs. Texas -- which has invalidated all remaining sodomy laws in the United States -- has provided ample recent evidence that the articulation in law and in culture of a right to privacy through which to express both the enjoyment of agency and the resistance to its unwarranted intrusion is ongoing still.

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