Tracing the Early Evolution of Privacy in America

Few concepts in American history are as intricate and enduring as privacy. From the quiet solitude of colonial homesteads to the digital world of the 21st century, privacy in the United States has been shaped by societal values, technological advancements, legal battles, and cultural shifts.

Between the Revolution and the Civil War, surveillance and individual rights coexisted in a fragile balance. The growing desire of U.S. bureaucracies to keep track of citizens was offset by limited technological means of information gathering and by the constitutional, statutory, and common-law regulations developed in the new Republic. However, this balance was disrupted post-Civil War due to unprecedented technological development, the rapid growth of bureaucratic institutions (both governmental and commercial), and the lack of adequate legal protections against surveillance practices.[1]

Privacy found no explicit mention in the U.S. Constitution, relying instead on a patchwork of amendments safeguarding against unreasonable searches, ensuring freedom of expression, and guaranteeing due process.

Yet, sensibilities akin to a Right to be Forgotten had already been recognized in U.S. law well before 1890. The ‘Publicity Given to Private Life’ section of the Restatement (Second) of Torts suggests that it is appropriate to hold someone liable if they reveal secrets about another’s private life that would be highly offensive to a reasonable person and are not of legitimate public concern. It further states in its definition of private life that ‘Every individual has certain phases of his life and certain facts about himself that are not for public consumption. [2]

While the U.S. Constitution does not explicitly mention the right to privacy, it is inferred from several amendments, primarily the First, Fourth, and Fifth. The First Amendment (1791) safeguards freedom of expression, religion, and assembly, ensuring an open exchange of ideas crucial for societal and political change. The Fourth Amendment (1791) focuses on preventing unreasonable search and seizure, safeguarding citizens’ property and individuals from arbitrary intrusion. This amendment introduced the concept of a ‘reasonable expectation of privacy,’ famously articulated by Justice Henson in the landmark case Olmstead v. US. [3] The Self-Incrimination Clause of the Fifth Amendment (1791) allows individuals to establish a sphere of privacy that the government cannot compel them to surrender to their disadvantage.

In the aftermath of the Civil War, three crucial amendments to the U.S. Constitution were introduced to protect the rights of newly emancipated African Americans. Firstly, the Thirteenth Amendment (1865) abolished slavery, liberating millions. Secondly, the Fifteenth Amendment (1870) granted Black men the right to vote, which was a significant stride toward equality. Lastly, Section 1 of the Fourteenth Amendment (1868) substantially expanded civil rights protections. This pivotal amendment unequivocally states that no state shall pass laws limiting the privileges or immunities of U.S. citizens. It also guarantees due process of law, prohibits the deprivation of life, liberty, or property without such process, and ensures equal protection under the law for all individuals within a state’s jurisdiction. [4]

No technological innovations influenced 19th-century surveillance practices more significantly than the telegraph, the Dictograph recorder, the instant camera, and the punch-card tabulating machine. Introduced in the 1850s, the telegraph revolutionized communication. Bell developed the telephone in Boston, where the first commercial telephone exchange was established in 1877. Advances in photography and audio recording enabled the distant and sometimes non-consensual documentation of individuals’ actions and speech. Additionally, photographic images began to supplant the easily manipulated signature as a reliable means for bureaucracies to identify individuals amid expanding urban centers. [5]

The advent of instantaneous photography and the burgeoning newspaper industry meant that personal moments once shared in quiet confidence could now be captured, reproduced, and disseminated to the masses with alarming speed and efficiency. It was against this backdrop of technological intrusion that the seeds of modern privacy were sown.

By the 1880s, public discontent with newspapers’ invasive reporting on personal affairs escalated into a profound indignation against the intrusive practices of yellow journalism on individuals’ privacy. In 1890, Samuel D. Warren and Louis D. Brandeis penned a seminal article in the Harvard Law Review titled “The Right to Privacy,”[6] and noted that technological innovations along with the aggressive expansion of the newspaper industry had heightened the risk of individuals’ private lives—encompassing their actions, words, images, and personal characteristics—being exposed without their consent, extending beyond the intimate sphere of family and close friends. They particularly highlighted the harmful impacts of uninvited newspaper coverage, criticizing the press for consistently exceeding the clear boundaries of decorum and decency. They observed that gossip had transformed from a pastime of the idle and malicious into a full-fledged industry conducted with both zeal and audacity.[7]

Warren and Brandeis in “The Right to Privacy,” articulated the revolutionary idea that privacy extends beyond physical space to the sanctity of one’s inner thoughts and emotions. It is the “right to be left alone.” They argued that individuals should be free from unwanted intrusion into their personal lives—a notion that resonated deeply in a society increasingly besieged by the encroaching tendrils of technology and mass media.

Warren and Brandeis proposed specific “general rules” to establish legal liability when someone’s right to privacy was violated. They recommended that legal actions should be reserved for a limited set of situations that satisfied two conditions:

(1) Cases where private matters that individuals wished to keep confidential were publicly disclosed against their wishes.

(2) Instances where such unwanted disclosures were clearly inappropriate or indecent.[8]

Using an individual’s photo without their consent, to promote a product, was increasingly witnessed causing a rise in the invasion of privacy. Gradually, the judiciary also started discussing this issue as more and more individuals became aware of their rights and presented claims in the courts of law. In Roberson v. Rochester Folding Box Co.,[9] a local milling company used Abigail Roberson’s photo to promote their product. Abigail claimed a ‘right of privacy’ and brought suit for the sum of $15,000. The New York Court denied the suit, by a 4-3 decision, saying that her claim held no right on grounds that it was yet unknown to common law what had been infringed.

A few years later, in Pavesich v. New England Life Insurance Co.,[10] a life insurance company used Paolo Pavesich’s picture for an advertisement without his consent. Paolo brought a suit for $25,000 in damages. The court here unanimously accepted the right to privacy in this case and subjected the insurance company to the said damages.

The right to privacy has evolved from a nascent concept to a cornerstone of civil liberties, woven into the fabric of our laws and cultural norms. The debate over privacy continues to evolve in the digital age, and new forms of intrusion challenge us to redefine boundaries and protect the sanctity of our personal lives. The story of privacy in America is far from over; it is a continuing dialogue between the past and the present, between individual liberty and societal progress.

[1] Committee on Privacy in the Information Age. Engaging Privacy and Information Technology in a Digital Age. National Academic Press, 2007. pp. 349-365, https://nap.nationalacademies.org/read/11896/chapter/13.

[2] Gajda, Amy. “Privacy, Press, and the Right to be Forgotten in the United States” BrooklynWorks, March 2018, https://brooklynworks.brooklaw.edu/cgi/viewcontent.cgi?article=2483&context=faculty.

[3] Olmstead v. United States, 277 U.S. 438 (1928).

[4] Head, Tom. “Where Did the Right to Privacy Come From?” ThoughtCo, Apr. 5, 2023, thoughtco.com/right-to-privacy-history-721174.

[5] Committee on Privacy in the Information Age. Engaging Privacy and Information Technology in a Digital Age. National Academic Press, 2007. pp. 349-365, https://nap.nationalacademies.org/read/11896/chapter/13.

[6] Warren & Brandeis, The Right to Privacy, Harvard Law Review, Vol. 4, No. 5, 1890, pp. 193-220, https://www.cs.cornell.edu/~shmat/courses/cs5436/warren-brandeis.pdf.

[7] Glancy, Dorothy J. “The Invention of the Right to Privacy” Arizona Law Review, Vol. 21, No. 1, 1979 https://law.scu.edu/wp-content/uploads/Privacy.pdf.

[8] Id at 37.

[9] Roberson v. Rochester Folding Box Co., 171 N.Y. 538 (1902).

[10] Pavesich v. New England Life Insurance Co., 122 Ga. 190, 50 S.E. 68 (1905).

Looking for guidance to implement data privacy? Connect with Ajay Mago or any member of EM³’s Data Privacy and Cybersecurity practice for professional support.

Ajay Mago is a former AmLaw 100 partner, with more than 16 years of experience in technology transactions, including at Jones Day, Mayer Brown, and Duane Morris. Mr. Mago advises on a wide array of sourcing, technology and other commercial transactions and helps companies navigate legal issues raised by data, emerging technologies, and digital transformation, both on the buyer and provider side. He routinely advises clients on IP strategy, management, and monetization arrangements, leveraging his technology background and business experience.