DePaul Law Review Volume 61 Issue 4 Summer 2012 Article 3 Saving Privacy from History Samantha Barbas Follow this and additional works at: https://via.library.depaul.edu/law-review Recommended Citation Samantha Barbas, Saving Privacy from History, 61 DePaul L. Rev. 973 (2012) Available at: https://via.library.depaul.edu/law-review/vol61/iss4/3 This Article is brought to you for free and open access by the College of Law at Via Sapientiae. It has been accepted for inclusion in DePaul Law Review by an authorized editor of Via Sapientiae. For more information, please contact [email protected]. SAVING PRIVACY FROM HISTORY Samantha Barbas* INTRODUCTION We are in the midst of a privacy panic.1 Panicking about privacy is nothing new; we have been worried about privacy and its loss for over a hundred years now, since at least 1890, when Warren and Brandeis wrote The Right to Privacy, the foundational text of the tort law of privacy. 2 Warren and Brandeis envisioned the "right to privacy" as a means to address what were perceived as serious threats to privacy and identity posed by the new media of the day-yellow journalism, gossip columns, and kodak photography. Our privacy concerns are arguably more intense now, and with good reason-new technologies can track our thoughts, movements, and intimacies and expose them to a global audience in an instant. We have very little privacy, and we have not gotten over it.3 It is widely recognized that the tort action proposed by Warren and Brandeis, written into law in most states over the twentieth century, failed to provide the kind of protection against the media that the authors had envisioned.4 As many have convincingly argued, tort pri- vacy is especially inadequate to address the needs of the twenty-first century, when new technologies magnify privacy injuries.5 There have * Associate Professor of Law, State University of New York at Buffalo. J.D., Stanford Law School; Ph.D., History, University of California Berkeley. 1. See, e.g., Harry Lewis, How Facebook Spells the End of Privacy, Bos. GLOBE, June 14, 2008, at All; Jeffrey Rosen, The End of Forgetting, N.Y. TIMES MAG., July 25, 2010, at 32; Daniel J. Solove, The End of Privacy?, Sci. AM., Sept. 2008, at 101; Richard Stengel, The End of Privacy? Not Yet, TIME, Mar. 21, 2011, at 4. 2. Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 HARV. L. REv. 193 (1890). 3. The oft-cited phrase, "You have zero privacy anyway, get over it," has been attributed to Scott McNealy, former CEO of Sun Microsystems. Private Lives? Not Ours!, PCWORLD (Apr. 18, 2000, 12:00 AM), http://www.pcworld.com.article/16331/private lives not ours.html. 4. See generally Diane L. Zimmerman, Requiem for a Heavyweight: A Farewell to Warren and Brandeis's Privacy Tort, 68 CORNELL L. REV. 291 (1983). See also Jonathan B. Mintz, The Re- mains of Privacy's Disclosure Tort: An Exploration of the Private Domain, 55 MD. L. REV. 425, 426 (1996) (pronouncing the privacy tort "dead"); Neil M. Richards & Daniel J. Solove, Pros- ser's Privacy Law: A Mixed Legacy, 98 CALIF. L. REV. 1887, 1889 (2010) ("Today, the chorus of opinion is that the tort law of privacy has been ineffective, particularly in remedying the bur- geoning collection, use, and dissemination of personal information in the Information Age."). 5. See generally Patricia Sanchez Abril, Perspective, A (My)Space of One's Own: On Privacy and Online Social Networks, 6 Nw. J. TECH. & INTELL. PROP. 73 (2007); Danielle Keats Citron, 973 974 DEPAUL LAW REVIEW [Vol. 61:973 been numerous suggestions for legal reform; existing laws have been deconstructed, analyzed, and criticized.6 Yet the law of privacy has not been sufficiently historicized, to our detriment.7 The premise of this Article is that an important key to the reform of the tort law of privacy lies in understanding its historical evolution. This Article focuses on the history of the privacy tort, which permits damages for dignitary injuries caused by unwanted and embarrassing publicity of private facts and images.8 Currently, publicly disclosing "a matter concerning the private life of another" constitutes a tort in most states if it "would be highly offensive to a reasonable person, and Mainstreaming Privacy Torts, 98 CALIF. L. REV. 1805 (2010); Neil M. Richards, The Limits of Tort Privacy, 9 J. TELECOMM. & HIGH TECH. L. 357 (2011). See also Erwin Chemerinsky, Lec- ture, Tucker Lecture, Law and Media Symposium, 66 WASH. & LEE L. REV. 1449, 1449-50 (2009) ("Even now, the cases about public disclosure of private facts do not seem to pay much attention to whether it is occurring in newspapers, radio, television, or the Internet. Here, too, the tort has developed and been refined unaffected by how the media has grown and changed."). 6. See, e.g., JON L. MILLS, PRIVACY: THE LOST RIGHT (2008); HELEN NISSENBAUM, PRIVACY IN CONTEXT: TECHNOLOGY, POLICY, AND THE INTEGRITY OF SOCIAL LIFE (2010); Josh Blackman, Omniveillance, Google, Privacy in Public, and the Right to Your Digital Identity: A Tort for Recording and Disseminating an Individual's Image over the Internet, 49 SANTA CLARA L. REV. 313 (2009); Erwin Chemerinsky, Rediscovering Brandeis's Right to Privacy, 45 BRAN- DEIS L.J. 643 (2007); Amy Gajda, Judging Journalism: The Turn Toward Privacy and Judicial Regulation of the Press, 97 CALIF. L. REV. 1039 (2009); Lauren Gelman, Privacy, Free Speech, and "Blurry-Edged" Social Networks, 50 B.C. L. REV. 1315 (2009); Jacqueline D. Lipton, Map- ping Online Privacy, 104 Nw. U. L. REV. 477 (2010); Andrew Jay McClurg, Bringing Privacy Law out of the Closet: A Tort Theory of Liabilityfor Intrusions in Public Places, 73 N.C. L. REV. 989 (1995); Connie Davis Powell, "You Already Have Zero Privacy. Get over It!" Would War- ren and Brandeis Argue for Privacy for Social Networking?, 31 PACE L. REV. 146 (2011); Daniel J. Solove, The Virtues of Knowing Less: Justifying Privacy Protections Against Disclosure, 53 DUKE L.J. 967 (2003); Lior Jacob Strahilevitz, A Social Networks Theory of Privacy, 72 U. CHI. L. REV. 919 (2005); Jaime A. Madell, Note, The Poster's Plight: Bringing the Public Disclosure Tort Online, 66 N.Y.U. ANN. SURV. AM. L. 895 (2011). 7. The history of the Warren and Brandeis tort has been misrepresented, misunderstood, and underutilized in much of the legal scholarship. The standard account begins with the 1890 War- ren and Brandeis article, goes to the famous 1960 law review article, Privacy, by William Prosser, then to the present day. This narrative overemphasizes the writings of legal theorists and fails to appreciate the interesting and important work taking place in the courts, and in twentieth- century American culture more broadly, in defining the contours of the right to privacy and the boundaries of acceptable publicity. For works that incorporate a historical approach, see Ran- dall P. Bezanson, The Right to Privacy Revisited: Privacy, News, and Social Change, 1890-1990, 80 CALIF. L. REV. 1133 (1992); Benjamin E. Bratman, Brandeis and Warren's The Right to Pri- vacy and the Birth of the Right to Privacy, 69 TENN. L. REV. 623 (2002); Robert C. Post, The Social Foundations of Privacy: Community and Self in the Common Law Tort, 77 CALIF. L. REV. 957 (1989); Rodney A. Smolla, Accounting for the Slow Growth of American Privacy Law, 27 NOVA L. REV. 289 (2002); James Q. Whitman, The Two Western Cultures of Privacy: Dignity Versus Liberty, 113 YALE L.J. 1151 (2004); Zimmerman, supra note 4. 8. In 1960, William Prosser divided the privacy tort into four branches: (1) intrusion upon the seclusion of another, (2) unreasonable publicity given to another's private life, (3) appropriation of another's name and likeness, and (4) publicity that unreasonably places another in a false light before the public. See William L. Prosser, Privacy, 48 CALIF. L. REV. 383, 389 (1960). The cases discussed in this Article primarily fall under the second and fourth branches. 2012] SAVING PRIVACY FROM HISTORY 975 is not of legitimate concern to the public."9 Mass media publicity is not a required element of the tort, although the right to privacy was conceived as a legal response to the perceived abuses of the popular press. A significant number of tort privacy cases have involved media defendants, and these cases are the focus of this Article.10 Under the privacy tort, liability can be imposed for the publicity of material that is "private." According to the prevailing doctrine, most anything that takes place outside the home is not private, nor is infor- mation disclosed to even a few other persons. Thus, an intimate scene outdoors, such as a burial, or a secret shared with a group of friends can be "public" under the law." On the issue of what is a privileged matter of public concern, or "newsworthy," courts have often deferred to the media. Gruesome photos, stories of accidents and crimes, and the embarrassing details of an individual's personal life have been held to be newsworthy matters of public concern apparently by virtue of the fact that they appeared in the press.12 These rules fail to capture the complex and nuanced ways that we understand and experience privacy in real life. They are also out- dated. They were, for the most part, created several decades ago, in the period roughly between the 1920s and the 1950s. The rules were built around a set of assumptions about the nature of personal identity in mass society, the capabilities and limitations of existing technolo- gies, and the social functions of the mass media.