Privacy has become a hot topic. Just think of all the recent scandals by large corporations like Facebook, Google, and Panera involving the collection of personal information, and it being distributed for the world to see. How could this data collection be allowed unconsented? Aren’t there supposed to be laws and precedents set to prevent this kind of practice? It turns out almost all privacy laws were made in the last 50 years and, before that, the concept of privacy was pretty much unheard of. This post will focus on privacy from a U.S. perspective, as covering all of the EU would make for a much longer post.

The first glimpse of privacy legislation came from John Locke in the late 1600s. He first helped influence the idea of liberty, which relates to privacy. “Defense of the right to private property and freedom of association were premised on the idea of individuals having rights against a state with powers limited by consent” (Locke, Second Treatise, Simmon 1992, Claeys 2008).

This idea of consent is key and plays a major role in privacy policy today. While consent is straightforward, it’s extremely difficult to draw the lines between what is considered private property and what is freedom of association. Is a company knowing that you're 30 years old, using a MacBook, and like watching superhero movies a version of intellectual property? Is this your property? It’s an idea that is up for much debate. On one hand, someone could learn these things about you by stalking you out in public illegally–but what if it’s on the internet without your knowledge? As of today, that’s still legal.

Now, the idea of privacy we know today was introduced as a concept in 1890, thanks to Samuel Warren and Louis Brandeis writing “The Right to Privacy” (Warren and Brandeis, 1890) in the Harvard Law Review. Warren and Brandeis claimed people had the “right to be alone” in reply to the increase in photography and newspapers. This new photographic technology led to many people having their pictures taken without them knowing, and then being published the next day for the entire town to see. They argued personal information belonged to the individual and couldn’t be publicized for the world to see. This example is akin to the tracking services today on the internet. Everyday websites are gathering information on you by tracking your likes, dislikes, devices used, and browsing patterns to better identify who you are and what you want.

In 2012, Target started profiling what women did online and what they bought in the store to better determine what to advertise to them. A high school girl shopping at Target started receiving ads for cribs and baby toys. Her father then brought complaints to Target telling them to stop influencing his high school daughter to have a baby. It turns out she already was pregnant, to neither him nor his daughters knowledge, and Target was advertising products to her that they knew she might need in the future. Back then Warren and Brandeis didn’t want people gathering photos everywhere they went, and now companies are actively profiting from our most intimate information.

Privacy wasn’t talked about again until the 1960s with William Prosser. He evaluated previous cases in the past 70 years and developed a loose definition of privacy rights. These were:

  1. Intrusion upon a person’s seclusion or solitude, or into his private affairs.
  2. Public disclosure of embarrassing private facts about an individual.
  3. Publicity placing one in a false light in the public eye.
  4. Appropriation of one’s likeness for the advantage of another (Prosser 1960, 389).

These rights have been used as the basis for privacy today with courts and states arguing over what falls into these categories. Warren and Brandeis had been concerned primarily with the second privacy right. Nevertheless, Prosser felt that both real abuses and public demand had led to general acceptance of these four types of privacy invasions. In his view, answers to three main questions were at the time unclear: (i) whether appearance in public implied forfeiture of privacy, (ii) whether facts part of a “public record” could still be private, and (iii) whether a significant lapse of time affected the privacy of revelations.

This basis was quickly put to work in the case of Griswold v. Connecticut (381 U.S. 479). In a case about sexual privacy as a constitutional right, the Supreme Court ruled that a state's ban on the use of contraceptives violated the right to marital privacy. The constitutional right to privacy was described by Justice William O. Douglas as "protecting a zone of privacy covering the social institution of marriage and the sexual relations of married persons."

There was much controversy over Douglas’ opinion. The constitutional privacy right was soon cited to overturn a ban against interracial marriage, to allow individuals to possess obscene matter in their own homes, and to allow distribution of contraceptive devices to individuals, both married and single. The most famous application of this right to privacy was to defend abortion rights in 1973 in Roe v. Wade (410 U.S. 113).

Right around the same time was the Watergate scandal, which influenced federal laws regarding personal information with The Federal Privacy Act of 1974. It allowed people to review records the government has on them. This was a win for privacy. It also attempted to prohibit federal agencies from disclosing any information they keep about a person by using the person's name or some other personally identifying number or symbol. This made personal information more anonymous. This was great back in the 70s, but now people can be identified without a name, id, or singular symbol.

As mentioned previously, websites can identify people based on browsing habits and in the health industry people can be identified by health metrics and history. These large amounts of data have made tracking people easier than ever before, creating a large problem of privacy. Companies must come up with a way to keep people’s data and people’s identities separate if we are to work towards a more ethical future.

Thanks to Edward Snowden, we know more about the various ways in which the U.S. government has been illegally spying on its citizens. Many tech companies including Microsoft, Google, Facebook, AOL, and YouTube fought to create the USA Freedom Act in 2015. The act requires that the U.S. government be totally transparent in its request for data and end the bulk collection of millions of Americans’ phone records.

This was a large step in protecting privacy in the United States, but there are many steps to go. Privacy protection has generally been improving over the past 50 years giving people more control over personal information, public records, and property. We need our laws to keep up with our technology. Companies already can identify you through multiple means, so it's time for laws that stop them from collecting and and profiting off of this personal information without consent.

Learn more about ContextCue and get started with ethical advertising at contextcue.com. Find us on Twitter @contextcue and Instagram @context_cue.

Bibliography

Claeys, Eric R. 2008. “The Private Society and the Liberal Public Good in John Locke’s Thought. Social Philosophy and Policy 25, no. 2: 201-234.

Prosser, W., 1955, Handbook of the Law of Torts, 2nd edition, St. Paul: West –––, 1960, “Privacy”, California Law Review, 48: 383–423.

Simmons, A. John. 1992. The Lockean Theory of Rights. Princeton, NJ: Princeton University Press.

Warren, S. and Brandeis, L., 1890, “The Right to Privacy,” Harvard Law Review, 4: 193–220.