I feel like everyone I know is at least a little concerned about their right to privacy these days. We all know that we’re in the “digital age” , and it can be hard to pin down exactly what that means for our privacy rights. I find it useful to turn to history in times of uncertainty, and maybe you do, too! The following timeline is a series of important moments in the history of your right to privacy today.
Let’s start way back in Ancient Greece. You might have guessed that privacy isn’t a new idea, but did you know that it wasn’t always desirable? In Ancient Greece, public life and private life were very separate. Public life, or polis, was for free men. It was the sphere of freedom, ideas, and action. Meanwhile, private life was for women and slaves. Private life existed only to fulfil the needs of a human body, like food and rest. In Ancient Greece, if you lived a life in private, you weren’t fully human. To be human was to be publicly involved and publicly perceived.
For more information:
Keigo Komamura, “Privacy’s Past: The Ancient Concept and Its Implications for the Current Law of Privacy”
Hannah Arendt, “The Human Condition”
Okay, so privacy was a thing, even if it wasn’t always something you wanted. But what about human rights? While we won’t get to the concept of “human” rights for a while, we should make a pitstop in 1140s Italy, when a monk named Gratian completed a compilation of 4,000 texts called the “Decretum Gratiani.” The Decretum was made up of texts that described judicial relationships within the Catholic Church, giving historians a huge insight into how rights were perceived during this time period. The Decretum Gratiani proves to us today that medieval people understood and supported the idea of natural rights (rights that everyone is born with and that cannot be taken away) and agreed that those natural rights could and should be protected.
For More Information:
Antonio Padoa-Schioppa, “A History of Law in Europe: From the Early Middle Ages to the Twentieth Century”
The concepts of privacy and natural rights continued to circle each other for centuries as thinkers and lawmakers mulled them over. In 1689, John Locke published his seminal treatise on property, writing that “every man has a property in his own person... The labour of his body, and the work of his hands, we may say, are properly his.” Some scholars today think that Locke’s definition of property was so broad that it might help us think about protecting our privacy from technological intrusions and invasions of data privacy. It is certainly true that Locke’s thoughts on property and other natural rights are important cornerstones of American and international law, and have shaped privacy law.
How do we know that Locke’s thoughts on natural rights shaped privacy law? Because they shaped the Bill of Rights! A century after Locke published his treatise on property, the United States of America adopted the Bill of Rights. This document protects the natural rights of American citizens and is a foundational text for American law, as it accompanies the Constitution. It is also a foundational text for privacy law, specifically. The Bill of Rights contains what we may consider “nods” to privacy rights – it never explicitly expresses a citizen’s right to privacy, but it does come close! We often refer to the first amendment as the freedom of religion, but it may also be interpreted as the right to religious privacy. Usually when we think of privacy and the Bill of Rights, we think about the fourth amendment, which doesn’t say “you have a right to privacy” but comes pretty close, expressing “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”
The first time that privacy rights are formally introduced to the American legal sphere was in 1890, with Samuel D. Warren and Louis Brandeis’ seminal work, “The Right to Privacy.” While “The Right to Privacy” was not legislation, it did lay the foundation for torte law regarding privacy. Warren and Brandeis were worried about recent technological advancements and how people using those technologies might be able to invade a persons’ privacy if that privacy were not explicitly protected (sound familiar?). They wrote that these recent inventions, like “instantaneous photographs,” made it important to be able to protect private and domestic life from invasion.
Reading “The Right to Privacy” today is almost spooky; Warren and Brandeis were right on the money when they wrote that “numerous mechanical devices threaten to make good the prediction that ‘what is whispered in the closet shall be proclaimed from the house-tops.’” If not spooky, it’s at least relatable. Is Alexa listening to what we whisper in our closet, and shouting it from the housetop of Amazon’s headquarters? And “instantaneous photographs” have taken on a whole new meaning in the era of social media – never mind newspapers.
Warren and Brandeis did more than express worry, though. They argued that there should be protections for a person’s right to be “let alone.” This was the first time that people argued that a person’s right to privacy should be legally protected in America.
A little over half a century later, in the aftermath of World War II, the global community recognized the need to protect fundamental human rights. So, in 1948, the United Nations General Assembly adopted the Universal Declaration of Human Rights. Article XII of the Declaration states that “no one shall be subjected to arbitrary interference with his privacy, family, home or correspondence... Everyone has the right to the protection of the law against such interference.” This was a foundational moment for how we understand privacy today, as a human right, and laid the groundwork for future legal protections of privacy all over the globe.
For more information:
Universal Declaration of Human Rights
A couple of decades later, Americans were beginning to put two and two together. Privacy was now a human right, and one might argue that the Bill of Rights protected it, even if indirectly. In the 1965 Supreme Court case Griswold v. Connecticut, the Court ruled that a Connecticut law forbidding the use of contraceptives violated the right of marital privacy. Justice William O. Douglas famously wrote that the Constitution implicitly guarantees a citizens’ right to privacy, referring to it as a right within the “penumbra” of specific guarantees of the Bill of Rights. This case stated that even though the Bill of Rights doesn’t use the word privacy, it’s still a big part of how Americans’ right to privacy is granted and protected.
In 1974, the United States federal government passed the Privacy Act (Public Law 93–579, 88 Stat. 1896, enacted December 31, 1974, 5 U.S.C. § 552a). Sounds promising, doesn’t it? Well, it wasn’t terribly far reaching. In fact, it only applied to federal agencies. But it did change a lot about how the federal government respected and protected the privacy rights of American citizens. The Privacy Act recognized the responsibility that the government itself has in protecting individuals’ information, and was designed to safeguard individual privacy from the misuse of federal records. When it became law, it granted individuals the right to request their records from federal agencies, request amendments to records that were inaccurate, untimely, or incomplete, and protected people against “unwarranted invasion of their privacy through the maintenance, use, and disclosure of personal information.”
In 1986, American law started to protect privacy on a grander scale than federal agencies. The Electronic Communications Privacy Act of 1986 (Public Law 99-508, 100 Stat 1848) took a stab at protecting what we might today consider “data privacy.” This law protects communications from interception while they are being made, while they’re on their way, and when they are stored on computers, and applies to emails, telephone conversations, and electronically stored data. This law has since been updated several times to keep up with new technologies. It was also updated by the Patriot Act, in 2001, which brings us to another chapter in privacy rights.
In the aftermath of the September 11th terrorist attacks in 2001, the United States began to grapple with how to protect both privacy and national security. The Patriot Act (Public Law 107-56, 115 Stat 272), introduced less than a week after the attacks, explicitly allowed more surveillance of the American public than ever before. It allowed for both domestic and international wiretapping and walked back protections on electronic communications. For more information about how libraries approached the Patriot Act and its threats to patron privacy, see my first blog post in this series on libraries and privacy. While the Patriot Act did expire in March, 2020, federal law enforcement agencies still retain most of the authorities granted by the original act.
In 2019, the United Nations returned to the issue of privacy full force after half a century. A resolution was adopted by the Human Rights Council (HRC) in September 2019. The Council expressed concern that “individuals often do not and/or cannot provide their free, explicit, and informed consent to the collection, processing, and storage of their data.” Just think of all the terms of service you have agreed to throughout your life just to use the internet, and you’ll understand this concern! The HRC also affirmed that “the same rights that people have offline must also be protected online, including the right to privacy,” calling back to their initial Universal Declaration of Human Rights. Finally, the Council expressed that while new and emerging technologies, such as Artificial Intelligence, have the potential to infringe on one’s right to privacy, such risks should be minimized through regulation that ensures “a safe, secure, and high-quality data infrastructure and by developing human-centered auditing mechanisms, as well as redress mechanisms.”
In 2020, the United Nations General Assembly responded to the Human Rights Council, affirming the need to discuss the right to privacy once again now that we are in the digital age, and affirming that “the right to privacy is important for the enjoyment of other rights,” as it affects political, economic, social, and cultural spheres.
Were you worried that American privacy protections were gone with the Patriot Act? Not so! The United States is keenly aware of the privacy rights issues we face in the present day, and as we look to the future of privacy rights, we might consider the American Privacy Rights Act of 2024, which was introduced on April 7th of this year (but has not been made law). This proposed act “would establish national consumer data privacy rights and set standards for data security.” Basically, if you’ve ever consumed anything online (whether that means you’ve gone online shopping, signed up for Facebook, or trained your TikTok algorithm), this bill is meant to protect you. If passed, it would give you the right to access data collected about you, as well as correct, delete, and export it. Plus, it would give you the right to opt out of targeted advertising, a process that looks at your personal data to try to discern what you might like to buy. All of which is to say, if you’re worried about your privacy in this digital age, not to worry: there are government representatives who are, too!
For that matter, your local libraries are also concerned with your right to privacy. It is part of our professional best practices and professional ethics to protect your privacy in the library, and to help you protect it yourself. That’s a big part of why you’re reading this blog post on a library system’s blog.
Keep an eye out for more blog posts here as we continue our series on privacy.