What We Talk About When We Talk About Privacy


Justice Louis D. Brandeis

Looking at various federal and state privacy laws, you’d be hard pressed to find a definition of privacy.  The omission isn’t an oversight so much as recognition that one person’s idea of what personal information should be kept private may be quite different from another’s. If you have a Facebook account, just a few minutes spent looking at some of the information your friends post in their Facebook profiles and elsewhere on their pages will confirm the diversity of comfort levels about sharing personal information with others. So, instead of attempting to define what privacy means as an absolute term, lawmakers generally have focused on articulating fair information practice principles to be applied in a variety of contexts. The principles themselves, however, can be traced back to the articulation of a right to privacy more than a century ago.

In their seminal 1890 Harvard Law Review article, “The Right to Privacy,” former classmates and law partners Louis Brandeis and Samuel Warren elevated the simple but powerful summation that the right to privacy is “the right to be let alone.” (I write elevate, because, the authors credited Thomas Cooley, an authority on the law of torts, with the phrase.) Back then, the unauthorized disclosure of letters and works of art, not the disclosure of personal information stored electronically, was the concern of the day and the subject of numerous court cases. In their article, Brandeis and Warren summarized a number of these cases while articulating the right of privacy as a fundamental right of Americans. Moreover, they framed the principle that the circulation of personal information for a restricted purpose does not constitute consent to publication or, in other words, use of the information beyond that restricted purpose.

Fast forward to our times and you’ll see this enduring privacy principal restated by the Federal Trade Commission as one of meaningful choice: “At its simplest, choice means giving consumers options as to how any personal information collected from them may be used. Specifically, choice relates to secondary uses of information — i.e., uses beyond those necessary to complete the contemplated transaction.” In other words, if a consumer hasn’t consented to the collection and use of his or her information for a particular purpose, those seeking to collect and use the data for such purpose should not do so. This much hasn’t changed in more than 100 years with regard to the treatment of personal information– the need to respect an individual’s assertion of his or her right to be let alone.

For those to whom the title of this blog posting may seem somewhat familiar, I wanted to acknowledge a fun read for runners and Haruki Murakami fans, his “What I Talk About When I talk About Running,” as well as Raymond Carver’s great short story collection and eponymous story, “What We Talk About When We Talk About Love.”