History of U.S. Privacy Laws

• Whereas even George Washington had feared that the sentiments he expressed in letters about the new Constitution were not confidential, “for by passing through the post-office, they should become known to all the world,”114 by the end of the nineteenth century a remarkable transformation in social attitudes and law had taken place. As David Seipp explains, “[n]ineteenth century public opinion regarded the ‘sanctity of the mails’ as absolute in the same way it esteemed the inviolability of the home.”115 Improved confidentiality procedures in the Post Office and strong legal protections went hand in hand with an emerging attitude that the ideas and sentiments expressed in letters traveling through the postal system should remain inviolate, in language often tinged with overtly religious imagery. Thus, a Louisiana court could refer in 1811 to the law’s respect for “the sacredness of a man’s correspondence.” (SSRN)
• In 1890, Samuel Warren and Louis Brandeis wrote The Right To Privacy in the Harvard Law Review(http://papers.ssrn.com/sol3/papers.cfm?abstract_id=969495)
  • Significantly added to privacy law debate and conception
  • Cited Prince Albert v Strange (http://www.bailii.org/ew/cases/EWHC/Ch/1849/J20.html)
  • Established for torts: public disclosure of private facts, intrusion upon seclusion, appropriation of name or likeness, and false light (Prosner as cited in papers.ssrn.com)
• William Prosner in 1960 wrote Privacy and helped on Restatement (Second of Torts) (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=969495).
  • Established American privacy law as four related torts
  • Minimized the importance of confidentiality in American law
• In America, the prevailing belief is that people assume the risk of betrayal when they share secrets with each other (papers.ssrn.com)
• As the preceding discussion illustrates, Warren and Brandeis did not write on a nearly blank slate when they crafted their “right to privacy.” Instead of developing and expanding the robust law of confidentiality that already existed, Warren and Brandeis took American privacy law down a different path. Before the Warren and Brandeis article, English and American privacy law were on a similar trajectory, being built out of the same materials and concepts. American judges read English precedent and attempted to situate their rulings within the fabric of the common law. Afterwards, the paths diverged. The next part explores the path Warren and Brandeis charted for American privacy law, and also the path not taken – that of developing the law of confidentiality. England took this alternative path, with some illuminating and fascinating results (SSRN)
• Instead of creating a law of privacy, England developed a law of confidentiality, which was explicitly distinguished from privacy. Ironically, both the American law of privacy and the English law of confidentiality emerged from the same source – the Prince Albert case. In this Part, we compare the two divergent paths leading from Prince Albert (SSRN)
• In 1902, The Roberson case produced a wave of public criticism. An editorial in the New York Times lambasted the decision.153 Commentary in law reviews largely sided with Roberson and decried the court’s failure to redress her injury,154 although one of the judges who decided the Roberson case took the unusual step of defending the decision in the Columbia Law Review.155 A year later, in 1903, the New York legislature responded to the case by enacting a statute allowing people to sue for invasion of privacy where their “name, portrait, or picture” was used without consent “for purposes of trade (SSRN)
• During the 1940s and 50s, many more jurisdictions began recognizing the right to privacy, with the result that by the 1950s, most states had adopted a tort right of privacy in one form or another (SSRN)
• William Prosser’s most famous discussion of the topic was a 1960 article entitled Privacy published in the California Law Review.166 In that article, Prosser noted that over 300 privacy cases had been decided since the Warren and Brandeis article, and that to date, there had been little “attempt to inquire what interests we are protecting, and against what conduct…Prosser identified the torts as follows:

1. Intrusion upon the plaintiff’s seclusion or solitude, or into his private affairs.
2. Public disclosure of embarrassing private facts about the plaintiff.
3. Publicity which places the plaintiff in a false light in the public eye.
4. Appropriation, for the defendant’s advantage, of the plaintiff’s name or likeness.169

• In creating this taxonomy of the law of privacy, Prosser had a dramatic effect on the development of privacy law in America (SSRN)