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Megan Sunderland
Dr. Schroeder
Communication Law
23 November 2015
Privacy: An Invisible Right with Visible Effects
The right to privacy is arguably one of the most important aspects of the law in todays
technologically driven world. From Facebook, to Tinder, to Instagram, people are constantly,
and readily, sharing more information about themselves than ever before. However, a major flaw
in this modern practice of loose disclosure is that many still expect the same standard of privacy
protection that citizens have historically enjoyed. With that, it is important to note that the right
to privacy is not explicitly established by the Constitution. In 2011, Newsweek published an
article titled Take the Quiz: What We Dont Know. It contained the results of a study
performed through the Daily Beast asking one thousand people, What is the supreme law of the
land? to which seventy percent could not give the answer (Newsweek Staff). If so many are
uninformed about such a general aspect of the Constitution, its likely that the right to privacys
absence from the document is also relatively unknown. Peoples unrealistic expectations of
privacy, the rights absence from the Constitution, and the Newsweek survey all contribute to the
conundrum that surrounds the right to privacy.
The right to privacy was established in 1890 when Samuel D. Warren and Louis D.
Brandeis published their aptly titled journal article, The Right to Privacy (Wacks 53). Society
and technology have constantly and drastically developed since then, and privacy standards have
had difficulties keeping with the pace of such development. In the book Social Media and the
Law: A Guidebook for Communication Students and Professionals, author and professor

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Woodrow Hartzog explains privacy in todays world, stating that, Our current privacy
protection regime is a patchwork of laws and remedies that are often muddled or in conflict with
other laws and evolving technology (52). Any legal disarray is slightly alarming, as precedent
and laws are the foundation of a structured society. This is especially true for privacy law, as
copious amounts of formerly private information are now disseminated by millions of people
with little firmly specified legal protection. As society and technology continue to advance, it is
essential to understand how privacy has evolved, the current state of privacy standards, and the
potential future implications of the modern tendency toward virtually full disclosure of personal
In order to understand the current meaning of the right to privacy, the history of the right
must first be chronicled. In their article, Warren and Brandeis explain that, The principle which
protects personal writings and all other personal productions, not against theft and physical
appropriation, but against publication in any form, is in reality not the principle of private
property, but that of an inviolate personality (205). The determinations of various early,
nineteenth-century privacy cases rested on the issue of private property, but as Warren and
Brandeis point out, the issues had to do with maintaining persona, akin to protecting privacy.
Though some of the property implicated in such cases was written, the development of
photography also played a role in the early interpretation of privacy. One such case, Pollard v.
Photographic Co., was decided in 1888. In the case, the court determined that a photographer
who was hired by Pollard could not use and sell photographs of her, on the ground that it was a
breach of an implied term in the contract, and also that it was a breach of confidence (Warren
and Brandeis 208). When Warren and Brandeis wrote their article two years later, they explained
that the right to privacy at the time specifically protected productions of the intellect or of the

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emotions, but could be stretched by a private individual, to prevent his public portraiture
(Warren and Brandeis 213). Pollard v. Photographic Co. is a perfect early representation of this
idea as a property case that is realistically a privacy case. The Right to Privacy was written
about a decade shy of the determination of one of the most prominent early privacy cases,
Roberson v. Rochester Folding Box Co., during which the right was deemed the so-called right
of privacy (Roberson v. Rochester Folding Box Co.). Rochester Folding Box Co. and Franklin
Mills Co. created twenty-five thousand reproductions of a photo of Abigail Roberson for
advertisement purposes (Roberson v. Rochester Folding Box Co.). However, the companies did
not have Robersons permission to do so, and she claimed to have experienced severe mental and
physical ailments as a result of her image being made public (Roberson v. Rochester Folding Box
Co.). She sought an injunction and damages, but the court ruled that the companies could
continue to use Robersons image and would not owe damages (Roberson v. Rochester Folding
Box Co.). Roberson lost the case primarily because the Court of Appeals of New York
determined that in order for a photo to be deemed damaging, thus libelous, there must be proper
allegation as to its character (Roberson v. Rochester Folding Box Co.). She did not actually
claim that the photo was libelous toward her, and the court narrowly decided in favor of the
Unlike early cases, privacy cases throughout the rest of the 20th century regarded the right
as legitimate and shifted from property to more theoretical and legal issues. One of the first of
these cases was Olmstead v. United States, decided in 1928. Olmstead, a police lieutenant, left
his position to begin The Olmstead Ring, an operation responsible for importing and
distributing alcohol during prohibition (Urofsky). The government used wiretaps on phones used
by the ring, including those at Olmsteads home (Urofsky). After the convictions of Olmstead

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and others involved were upheld by a court of appeals, the case moved to the Supreme Court
where his lawyers argued that his Fourth Amendment rights had been infringed upon (Urofsky).
In the end, the Court narrowly upheld the governments use of the evidence garnered from
wiretapping (Urofsky). Brandeis dissented, arguing for citizens right to privacy through the
intention of those who created the Constitution:
They conferred, as against the Government, the right to be let alonethe most
comprehensive of rights and the right most valued by civilized men. To protect
that right, every unjustifiable intrusion by the Government upon the privacy of the
individual, whatever the means employed, must be deemed a violation of the
Fourth Amendment. (Urofsky)
Olmsteads case represents the move from property privacy concerns to legal privacy concerns,
particularly through Brandeis insistence of the privacy protection afforded by the Fourth and
Fifth Amendments. Over thirty years later, in 1965, the Supreme Court decided on what would
become one of the most important cases for the right to privacy, Griswold v. Connecticut. The
case involved two Connecticut statutes concerning contraception, one that barred people from
educating others about contraceptive options and another that restricted people from using
contraceptives (Lockhart 35). Two state Planned Parenthood directors were found guilty and
convicted of educating married couples about contraception and contraceptive options (Lockhart
35). After their convictions were upheld by a court of appeals, they again appealed the case to
the Supreme Court, arguing that their Fourteenth Amendment rights had been breached
(Lockhart 35). The Court ruled in favor of Griswold, explaining the existence of a zone of
privacy created through indirect provisions assured by certain amendments (Lockhart 36). The
justices considered such privacy essential to marriage, noting, We deal with a right of privacy

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older than the Bill of Rightsolder than our political parties, older than our school system
(Lockhart 37). Griswold v. Connecticut essentially established privacy as a protected right, and is
considered a landmark decision (Helscher 33). Though the case pertains to a very specific state
law, the ultimate recognition of a right to privacy is arguably one of the most significant actions
of the Supreme Court, and a precedent that forever changed the American legal system.
As cases in the twentieth century dealt with the theoretical establishment and refinement
of the right to privacy, privacy cases since 2000 have largely dealt with evolving technology.
One such innovation is Google Maps, the platform at the center of Boring v. Google. The service
has a Street View feature that allows users to see panoramic, navigable views of streets in and
around major cities obtained by cameras fastened to cars driven by Google employees (Third
Circuit 31). The Boring family claimed that Google violated their right to privacy when an
employee entered their private road and took photos of the outside of their home (Third Circuit
31). On appeal, the court struck down the Borings allegation that their right to privacy was
violated, and because the picture did not actually capture them inside of their home, their
allegations of intrusion upon seclusion and publicity given to private life were unfounded as
well (Third Circuit 31). Additionally, the court deemed the familys allegation that Google had
trespassed on their property valid, but they were awarded damages totaling merely one dollar
(Third Circuit 32). Though the Borings barely won their case, the courts decisions provided
important distinctions within privacy law. Though Google did trespass on their property, the
panoramic photo taken of their home was not considered highly offensive, and the employees
actions would not have caused a person of ordinary sensibilities to be shamed, humiliated, or
have suffered mentally (Third Circuit 31). Cellphones are innovations that have also been
subject to privacy concerns, especially as their capabilities are furthered. One pertinent case is

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Riley v. California, tried in 2014. David Riley was pulled over and found to be driving with a
suspended license, after which his car was impounded (Riley v. California). Police found two
guns hidden in his car, for which Riley was arrested, and upon searching his person, confiscated
his cellphone and found possessions linking him to a gang, specifically the Bloods (Riley v.
California). A detective obtained Rileys phone and examined the contents, eventually finding
photos that linked him with a prior shooting (Riley v. California). He faced multiple charges
stemming from the shooting, but attempted to rid the case of the evidence procured from his
cellphone, claiming that the unwarranted search infringed upon his Fourth Amendment rights
(Riley v. California). A trial court found Riley guilty, a decision that was upheld by an appellate
court until the Supreme Court saw his case (Riley v. California). Rileys case was examined in
conjunction with United States v. Wurie (Riley v. California), leading the justices to unanimously
determine that a warrant must be procured in order to search the cellphone of someone who has
been arrested (Bychowski). The Courts ultimate ruling was based on the notion that cellphones
contain the the privacies of life, and Justice Roberts opinion noted that, The fact that
technology now allows an individual to carry such information in his hand does not make the
information any less worthy of the protection for which the Founders fought (Riley v.
California). This case is especially notable because of the courts unanimous decision about a
modern challenge so influenced by historically implemented standards.
Through the descriptions and progression of cases discussed, an interesting pattern
emerges. In the nineteenth century, privacy was a largely unfounded right and early cases rested
on property rights. Then, in the twentieth century, privacy became a legitimate right and many
cases dealt with the fundamental underpinnings of how it could be applied. In recent years,
twenty-first century privacy cases have somewhat shifted to resemble those that were decided in

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the nineteenth century, focusing on privacy rights in terms of technological objects, services, and
platforms. As the years have progressed, so has the meaning of the right to privacy, though it has
been argued that it is a concept in disarray (Solove 1). Professor and author Raymond Wacks
notes that there is a lack of a concrete definition for privacy, though at its heart lies a desire,
probably a need, to prevent information about us being known to others without our consent
(40). Furthermore, professor Andrei Marmor explains how the right to privacy satisfies the want
to have a reasonable measure of control over ways in which we present ourselves to others
(25), and that the right is infringed upon by the way in which the private information is garnered,
not by the content of the information itself (4). These are only two relatively understandable and
encompassing descriptions of privacy among dozens, maybe even hundreds, of academic
opinions. The truth, however, is that there are billions of descriptions of privacy, as every person
in the world has their own standards for what the right does or should protect.
Rather than sifting through the many academic opinions about privacy that exist,
professor and author Daniel J. Solove offers a concise look at some of the major theories of
privacy in his book, Understanding Privacy. He begins with the right to be let alone, quoted
from Warren and Brandeis nineteenth century article (Solove 15). Though their article is seen as
the essential catalyst for the right to privacy to become law (Solove 15), Solove argues that the
description of privacy offered is broad and vague, quoting legal scholar Anita Allens
perspective that under such a definition, physical violence could be akin to invading ones
personal space in their home (18). Solove moves on to limited access to the self, or a
persons want to restrict others from their personal lives, similar to Warren and Brandeis
conception of privacy (18). While the concept does not denote solitude (Solove 18), Solove
argues that it doesnt specify the level at which a persons privacy is infringed upon, again

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describing it as too broad and too vague (20). Next, Solove discusses the concept of secrecy
pertaining to privacy, or the idea that privacy is violated by the public disclosure of previously
concealed information (21). He again finds fault with this association, as privacy as secrecy is
too narrow (Solove 24), arguing that privacy is not simply total non-disclosure, but rather the
ability to share private information with whom one chooses and to oversee the effects of that
information being shared (Solove 23-24). Essentially, many commonly recognized privacy
invasions do not involve the loss of secrecy (Solove 24). He continues, focusing on control
over personal information, particularly citing Charles Frieds notion that Privacy is not simply
an absence of information about us in the minds of others, rather it is the control we have over
information about ourselves (qtd. in Solove 24). Solove disagrees with this definition of privacy
for multiple reasons, including the facts that it restricts privacy as relating to information and
does not define what control entails, and believes that it is overall too vague, too broad, or
too narrow (29). He then discusses protecting personhood, presenting arguably the most
understandable definition of personhood as explained by Jeffrey Reiman to be the individuals
interest in becoming, being, and remaining a person (qtd. in Solove 30). One of the flaws
Solove understandably finds with the idea is that personhood can barely be defined, resulting in
an inability to define privacy as well (31). He notes that personhood is too broad a concept,
and uses the metaphor of a piece of art as an expression of the deepest recesses of an artists
existence, yetoften put on public display to explain that people are not simply the private
beings that personhood regards them as (Solove 31-32). Finally, Solove delves into intimacy,
holding that privacy is essential not just for individual self-creation, but also for human
relationships (34). He determines that intimacy is too broad a way to define privacy when

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what is considered intimate is unspecified, and also too narrow for focusing mainly on
intimate relationships (Solove 37).
Though Solove managed to find fault with each of the privacy definitions that he
identified, his rejection is a perfect illustration of the disorganization of modern privacy. Privacy
law seems to hinge primarily on precedent, in addition to few lasting legal standards, such as the
right to privacy recognized by Griswold v. Connecticut. However, precedents resulting from
privacy cases are arguably weaker than those established in any other aspect of the law, primarily
because they are relatively timely, shaped by fleeting eras of privacy and technological norms.
As noted earlier, nineteenth-century privacy cases dealt with property, twentieth-century privacy
cases concerned establishing the right and examining its theoretical limitations, and twenty-first
century privacy cases have somewhat reverted to similar privacy concerns held in the nineteenth
century, focusing on possessions and the latest technological innovations. This progression is
important, as contemporary understanding about the protection of privacy has evolved not
despite new technologies, but because of them (Salecl 1). Privacy rights today are arguably
more absent than they have been since the original right was first established. Technology is now
constantly developing, therefore constantly forcing privacy standards and protections to change.
From using social media to post personal thoughts and photos, to revealing credit card
information to shop for almost anything online, to the ability for what attorney John J. Heitmann
calls location-based services to track and store locational data of smartphone users (Defining
Privacy 8), the ability to give up personal information is really no longer a choice, but rather a
way of life. The generation primarily implicated in the relinquishing of formerly private
information is Generation Y, commonly known as Millennials, a group consisting of people born
beginning in 1981 through 2000 who were influenced by the rapid expansion of technology and

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media, violence, widespread drug usage, and unprecedented immigration growth (Yadin 33).
People born during the almost twenty-year span are extremely technologically driven, relying
heavily on the Internet and ensuring themselves the ability to be instantaneously connected with
others (Yadin 33). A study from researchers at the University of Southern California found that
fifty-one percent of Millennials would allow companies to track them or access their personally
identifiable information (PII) if they receive some benefit, such as coupons, compared to only
forty percent of people over the age of 35 (Millennials 15). Today, such tracking can be done
by way of data mining, the ability for companies to examine observational data sets to find
unsuspected relationships and to summarize the data in novel ways that are both understandable
and useful to the data owner, especially for marketing purposes (Yadin 34). Millennials are
undoubtedly key in this practice, as well as the e-commerce industry, as their online sharing
habits result in raw data for new knowledge used by the recommender systems. These systems
recommend new products, services or usage patterns, which in turn starts a new cycle of
information gathering (Yadin 34). Additional privacy concerns are encountered in areas such as
security, as terror threats require a higher degree of security that is sometimes achieved at the
expense of privacy (Yadin 35), and the workplace, as employers have the ability to view
employees social media accounts (Defining Privacy 9). In short, though privacy rights are
struggling, it seems as though this is the result of the choices of many in sharing personal
information rather than pure infringement. As author Renata Salecl articulately notes, we come
to the point that what privacy protects is not the subjects identity but the very lack of it (8).
The history of the right to privacy and its modern implications are certainly important
concepts to consider, but it is clear that the future of privacy is the ultimate and most important
aspect of this topic as a whole. In continuation of the above discussion about the capabilities for

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data acquisition, a question posed by Professor Judith Rauhofer brings a vital point to light,
asking, for which other purposes will the data be used after collection that were not envisaged
(at least by the data subjects) at the time? (192). This type of forward thinking seems absent
from the minds of many today, merely, if at all, focusing on imagined privacy protection at the
perceived time of offense. In author Michelle G. Houghs book, Putting Privacy in Perspective:
Exploring the Evolution and Implications of Privacy in U.S. Society, she discusses four areas of
privacy and what they could become in the future. The first is solitude, allowing a person to be
alone and freed from the observation of other persons (Hough 120). Without solitude, Hough
recognizes that people would be constantly connected via technological means, allowing for
no personal time and resulting in a society of mimickers (121). Next, she brings up intimacy,
where the individual is acting as part of a small unit that exercises corporate seclusion to
achieve a close, relaxed, and frank relationship between two or more individuals (Hough 122).
In the absence of intimacy, it is probable that trust within relationships would completely
dissolve, thus blocking the ability for individuals to confide in one another (Hough 122). Then,
anonymity is defined through the words of Flaherty as protection in a more public setting
from continuous recognition and physical surveillance (qtd. in Hough 123). Without anonymity,
an individuals every move and statement would be publicly associated with them, and everyone
would know them (Hough 124), essentially eliminating the concept of strangers. Lastly, Hough
focuses on reserve, best conceptualized as the individuals choice to withhold or disclose
information during daily interpersonal interactions (125). If reserve did not exist, the ability to
filter what is and is not shared about oneself would be eliminated, resulting in everything, even
things one would not want made public, to be readily available for others to learn about (Hough
125). Though the absences of such aspects of privacy seem extreme, many peoples current

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actions leading to the dissemination and circulation of private information could result in such a
future if left alone. As people continue to test the limits of personal privacy, the right to privacy
not only loses its value, but the ability to develop further precedent surrounding privacy
concerns. If privacy law and standards continue to be so variable in relation to one another, the
friction will certainly prove to be too intense to ensure proper protection for society. It is possible
that the next generation could experience a world on the brink of total, rather than virtual, full
disclosure of personal information.
From the nineteenth century, to the twenty-first century, and all the years in between, the
right to privacy has drastically advanced. However, with the prospective future of the right as
discussed, it is imperative that lawmakers and society move toward a more unified conception of
privacy laws and ideals. Currently, privacy laws are stunted in development as compared to
rapidly advancing technology and disclosure norms. Though both Hough and Solove, now in his
book, The Future of Reputation, discuss legal attempts to preserve privacy, each contend that
education is one of the best ways to further protect privacy (Hough 135; Solove 204). Solove
particularly asserts that, Teenagers and children need to be taught about privacy just like they
are taught rules of etiquette and civility (204). While older individuals in society may benefit
from privacy education, it is the youth who will undoubtedly have the most potential for
impacting the future of privacy. Though this future seems uncertain, there are measures that can
and must be taken to ensure that the scope of privacy is not only maintained, but also expanded
for generations to come.

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Works Cited

Bychowski, Stephen Thomas. "United States: In Riley v. California, Supreme Court Rules Police
Must Obtain Warrant Before Searching Cell Phones." Mondaq Business Briefing 7 July
2014: n. pag. LexisNexis Academic. Web. 13 Nov. 2014.
"Defining Privacy More Difficult in Age of Mobile Devices, Speaker Says." HR Focus 89.4
(2012): 8-9. ProQuest. Web. 19 Nov. 2015.
Hartzog, Woodrow. "Privacy and Terms of Use." Social Media and the Law: A Guidebook for
Communication Students and Professionals. Ed. Daxton R. Stewart. New York:
Routledge, 2013. 50-74. Print.
Helscher, David. "Griswold v. Connecticut and the Unenumerated Right of Privacy." Northern
Illinois University Law Review 15.1 (1994): 33-61. HeinOnline Law Journal Library.
Web. 12 Nov. 2015.
Hough, Michelle G. Putting Privacy in Perspective: Exploring the Evolution and Implications of
Privacy in U.S. Society. Happauge: Nova Science Publishers Inc., 2013. ProQuest
ebrary. Web. 16 Oct. 2015.
Lockhart, Andrea. "Griswold v. Connecticut: A Case Brief." The Journal of Contemporary Legal
Issues 14.1 (2004): 35-39. HeinOnline Law Journal Library. Web. 12 Nov. 2015.
Marmor, Andrei. "What Is the Right to Privacy?" Philosophy & Public Affairs 43.1 (2015): 3-26.
Wiley Online Library. Web. 15 Nov. 2015.
"Millennials: Online Privacy Is Dead." Information Management Journal 47.4 (2013): 15.
Academic OneFile. Web. 19 Nov. 2015.
Newsweek Staff. "Take the Quiz: What We Don't Know." Newsweek. Newsweek LLC, 20 Mar.
2011. Web. 10 Nov. 2015.

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Rauhofer, Judith. "Privacy Is Dead, Get over It! Information Privacy and the Dream of a Riskfree Society." Information & Communications Technology Law 17.3 (2008): 185-97.
HeinOnline Law Journal Library. Web. 19 Nov. 2015.
Riley v. California. Supreme Court of the United States. 2014. LexisNexis Academic. Web. 13
Nov. 2015.
Roberson v. Rochester Folding Box Co. 171 N.Y. 538. Court of Appeals of New York. 1902.
LexisNexis Academic. Web. 11 Nov. 2015.
Salecl, Renata. "The Exposure of Privacy in Today's Culture." Social Research 69.1 (2002): 1-9.
ProQuest. Web. 19 Nov. 2015.
Solove, Daniel J. The Future of Reputation: Gossip, Rumor, and Privacy on the Internet. New
Haven: Yale University Press, 2007. Print.
Solove, Daniel J. Understanding Privacy. Cambridge: Harvard University Press, 2008. Print.
"Third Circuit Finds Google's Street View Does Not Invade Privacy." The Computer & Internet
Lawyer 27.4 (2010): 31-32. Academic OneFile. Web. 13 Nov. 2015.
Urofsky, Melvin I. "The Case of the High-Tech Bootlegger: Olmstead V. United States (1928)."
Supreme Decisions: Great Constitutional Cases and Their Impact. New York: Westview,
2012. N. pag. Credo Reference. Web. 12 Nov. 2015.
Wacks, Raymond. Privacy: A Very Short Introduction. New York: Oxford University Press,
2010. Print.
Warren, Samuel D., and Louis D. Brandeis. "The Right to Privacy." Harvard Law Review 4.5
(1890): 193-220. JSTOR. Web. 11 Nov. 2015.

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Yadin, Aharon. "Millennials and Privacy in the Information Age: Can They Coexist?" IEEE
Technology and Society Magazine 31.4 (2012): 32-38. IEEE Xplore Digital Library.
Web. 19 Nov. 2015.