CHAPTER 2
A (Very) Brief History of Privacy

The right to be let alone is indeed the beginning of all freedom.

-William O. Douglas

(Dissenting opinion, Public Utilities Commission v. Pollak [1952])

Having a grasp on the concept of privacy is useful, but it's not enough for our purposes. We will soon have to confront regulations governing privacy that directly impact the way we do business. It is paramount that we understand not only privacy as a concept but privacy in context.

In other words, how did we get here?

Since time immemorial, all cultures, all over the world, have had some understanding of privacy as a concept. Some codified it into laws, while others integrated it with religious beliefs. There is substantial scholarship on the subject, and you'll find selected entries in the bibliography to kick off your in-depth review. For our purposes here, a few snippets will suffice to give as a sense of history and scope.

The ancient Greeks, borrowing from the Egyptians, venerated the God of Silence and Secrets, Harpokrates. He is usually pictured as a mischievous little boy with his finger to his lips as if he is saying "Shhh!" (You've got to start somewhere, I guess!) But the Greeks, being geometry savvy, didn't just include a secretive god in their pantheon. They also designed their living spaces by placing what we would consider window openings in such a way that it would limit the view of an outside observer peering in.

The ancient Chinese, meanwhile, had-and still have-a very different and complex understanding of privacy. In broad terms, the word for privacy, yin-si, is a composite of two meanings: yin for "hidden" and si for "not for public disclosure." As such, yin-si was meant to describe the concept of privacy, but in a negative light-the term carries the sense of a shameful secret.

According to scholars of ancient Chinese culture, the Chinese were more focused in the governance of the state, and in protecting the governance structure, than protecting the individual. This was ultimately codified in a collection of morality-driven laws governing behavior across many levels, eventually compiled by none other than Confucius. In his Analects, he wrote, "Do not watch what is improper. Do not listen to what is improper. Do not speak nor act improperly." He also wrote that that gossip and hearsay were improper and urged everyone to double-check their Internet sources before forwarding their mother-in-law's conspiracy theory emails. (Yes, Gladys! We did land on the moon, the earth is not flat, and vaccines do save lives! Move on! Let it go!)

As tempting as it is to go through each ancient empire one by one (Egyptians, Babylonians, Greek, Assyrian, Persian .), I'll spare you the individual details and focus on the one thing they had in common with regards to privacy: they didn't have any! Certainly not as we understand-or struggle to understand-privacy today.

Until the Middle Ages, privacy was not particularly possible. Most houses had one room. Most common spaces were open. To be sure, some cultures more than others took some steps to preserve what we today would identify as privacy, but in general, it was a time of communal living with little consideration of individual privacy.

I am not suggesting that this was necessarily by choice. But it was the reality for the vast masses of people, all over the world. To be sure, one would expect that they would rather have their own individual rooms, and so forth, but that was not possible, mostly for socioeconomic reasons. For that matter, Clellan Ford and Frank Beach in their Patterns of Sexual Behavior (1951) demonstrated that pretty much universally and irrespective of culture, humans would prefer their intimate moments to be private-even if that means taking them outside. (I suppose this is the reverse of "get a room," back when rooms were not an option!)

The ones who did "have a room," as we got closer and closer to the Renaissance, were the rich, living in their castles and palaces. It's around this time that the notion of privacy starts getting some traction. In fact, the historian Peter Smith declared that "Privacy (is) the ultimate achievement of the Renaissance!" Interestingly, privacy was made possible by the intersection of technology (namely, Gutenberg's press) and the Catholic Church. It might seem counterintuitive, but a mandatory one-on-one confession between the individual and God (as decreed in the Great Council's declaration of 1215), was a dramatic departure from the communal way of enforcing morality. Then, once printed bibles became commonplace, the devout could study and contemplate in private isolation, further distancing themselves from the community. A dramatic shift was underway, one that would take a couple of centuries to take hold, away from the "community" and toward individual privacy.

The fun started in 1604 with England's attorney general Sir Edward Coke and his famous ruling in Semayne's Case. The ruling has become popularly known as "The Castle Doctrine," because it starts with ". the house of every one is to him as his Castle and Fortress as well for defence against injury and violence, as for his repose." But in fact Coke's writing is substantially more complex than just that notion. He went on to clarify the specifics of how this fortress is to be used and also set limits on how the authorities (at the time, the Sheriff) could gain access. Think warrants! A good start!

For the next two and a half centuries, the western world was busy doing everything from establishing the slave trade, to publishing the King James Bible, mourning the death of Shakespeare, completing the Taj Mahal, chopping off the head of Charles the First, developing calculus, establishing trade with China, printing the first daily newspaper, losing 30,000 souls in the Lisbon earthquake, signing the US Declaration of Independence, starting the French Revolution, painting portraits of Napoleon, watching Charles Babbage invent the first computer, reading Lincoln's Emancipation Proclamation, covering their ears when Nobel set off his first dynamite, and saying "cheese" to George Eastman's perfected Kodak box camera.

The Legal Case for Privacy (the Big Print)

It is at this point where our review of privacy history takes on a different focus: Privacy's legal status. I, personally, find all these foundational privacy law cases and opinions absolutely fascinating, and wanted to include them all here, exuberantly sharing them with you! But my editor reminded me that I also love eating raw sea urchins, which-like my choice of reading-may be an acquired taste.

Therefore, I have taken her wise advice and split the legal case section in two: the Big Print section (here), and the Fine Print section (Chapter 3). In the first section, we'll go over the legal review on a high level, discussing why and how these cases and opinions shaped our thinking and led to the regulations we all deal with today. In the Fine Print section that follows in Chapter 3, I will present more detailed excerpts of the opinions for those that want to revel in the original writing of these great legal minds.

With that in mind, let's begin!

If I were to pick the major milestones for privacy law evolution in the western world, I would select the ones enumerated in Table 2.1.

Slouching toward Privacy

It is no surprise that privacy law is culture dependent. European cultures tend to reflect a stronger community identity, and privacy laws reflect that difference. American culture, by contrast, tends toward the individualistic, and the development of privacy laws reflect that.

A hugely significant moment was an 1890 article in the Harvard Law Review, "The Right to Privacy" by Samuel Warren and Louis Brandeis. Extensive quotes from the article are included in the Fine Print section; for now, a quick overview.

Warren and Brandeis were writing in the context of then-recent inventions of photography and audio-recording devices, which the authors claimed, "have invaded the sacred precincts of private and domestic life." Warren and Brandeis wrote, "The press is overstepping in every direction the obvious bounds of propriety and of decency." Their article was a defense of, as they called it, "the right to be let alone."

"The Right to Privacy" was the first attempt at pulling together accepted US standards into some kind of coherent legal standing for privacy. The argument is essentially that a right to privacy, while not spelled out in the Constitution literally, nonetheless exists in common law. They cite the Fourth Amendment as a strong undergirding for the right, specifically, "to be secure in their persons, houses, papers and effects." The article also cites the Fifth Amendment, which comes into play because, just as people shouldn't be forced to say things they don't want to, they should not be forced to share information, either.

Table 2.1 Milestones in the Evolution of Privacy Law

1. Milestone

1. Thomas M. Cooley, Justice and later Chief Justice of the Michigan Supreme Court,...