The History of Privacy Laws in the United States

The right to privacy or the right to be left alone is a legal concept upon which the tort regarding the invasion of privacy is based. The privacy laws of the United States is mainly based upon this tort, upon which a person can make a legal claim or file a lawsuit against another.

However, the “right to privacy” as a concept is not included in the Bill of Rights. It began later, sometime in 1890, from an article published in the Harvard Law Review entitled “The Right to Privacy.” It was written by Samuel D. Warren and Louis Brandeis, who would eventually become a Supreme Court justice. They wrote this in reaction to the introduction of a new handheld “small camera technology” by Eastman Kodak. It was a smaller, cheaper camera that was affordable enough for the general public when compared to the larger and more cumbersome studio cameras. They wrote it because of their concern about privacy and sensationalistic press practices. As they pointed out, such a development also required the growth of common law “to meet the demands of society.” Gossip, an overzealous press, and now the advent of a portable camera, have made people more sensitive to the need for privacy, more sensitive to publicity, and thus necessitating additional legal protection for every person’s right to be left alone.

The law article later went on to become an integral part of jurisprudence and was later hailed for its great influence upon the legal field.

This right to privacy, or the right to be left alone, is actually comprised of four separate torts:

  • Publicly disclosing private facts about the plaintiff
  • Unreasonable intrusion upon the plaintiff’s seclusion or solitude
  • Placing the plaintiff in a false light in the public eye
  • Appropriating the plaintiff’s identity for the benefit of the defendant

All these four separate torts comprise a cause of action for which the plaintiff may bring suit. It is important that these privacy rights protected by tort law are different from the rights safeguarded by the United States Constitution and Bill of Rights, which deals more with instances in which a person’s rights are violated by the State. These include the fourth amendment, which protects against unreasonable searches and seizures. In groundbreaking cases such as Griswold v. Connecticut (1965), and Roe v. Wade (1973), what was protected was the right to substantive due process to privacy as outlined in the Fourteenth Amendment. This Fourteenth Amendment right to due process was only recognized, however, as applying to a general right to privacy with regards to marriage, motherhood, procreation, and child-rearing. The right to privacy under tort law, on the other hand, more specifically deals with private individuals who may seek protection against another private individual for a possible violation of their right to be left alone.

Yet again another distinction that must be made is the right of private persons to “privacy,” as opposed to the privacy expectations of public figures, or the personal activities of public celebrities or those involved in events that are reasonably of public interest.