Published on December 16, 2014.
1. The current legal regime on privacy is based on a 19th-century understanding of the press. The influential Harvard Law Review article of Dec. 15, 1890, by Samuel Warren and justice-in-the-making Louis Brandeis, famously gave focus to the scope of that right: “the right to be let alone.” In other words, privacy as we legally understand it today has been mostly a reaction to a “too enterprising press.”
2. The article’s summary of the excesses of the press is harsh but also, as far as it goes, accurate, even today, almost 125 years later. “Gossip is no longer the resource of the idle and of the vicious, but has become a trade, which is pursued with industry as well as effrontery. To satisfy a prurient taste the details of sexual relations are spread broadcast in the columns of the daily papers. To occupy the indolent, column upon column is filled with idle gossip, which can only be procured by intrusion upon the domestic circle.”
3. But social media is based on what we can call an opposite right, the right to be part of a crowd, the right to not be alone. In most cases, someone joins social media—posts a video of a Christmas party on Facebook, retweets a Dalai Lama quote on Twitter, endorses a professional on LinkedIn, and so on—in order to share something with a community.
4. The question, then, is: What does this new reality mean for the right to privacy today? Does the emergence of new media also mean a new understanding of the concept of privacy? Warren and Brandeis preface their research with a word about the evolution of law; we can take our cue from them.
5. It is even more useful, however, to consider the multiple roles of media. Borrowing from Ethan Zuckerman’s “Rewired,” we can make a practical distinction between standard, search, and social media. (Personal aside: As a practicing journalist, I find this idea of media roles helpful for understanding, and navigating, the rapidly changing media landscape.)
6. In standard media, the news is defined by professional gatekeepers—editors like me, for example. The news that “TV Patrol” chooses to air is largely determined by the network’s news directors, working closely with their reporters; this much is clear. But even in something as new as a news app for a smartphone or a chat app with a news function, for instance those of the BBC, the stories or video or photographs we see are still chosen for us by editors and producers.
7. In search media (a media role that emerged only in the 1990s), the news is defined by the person seeking the information and the algorithm of the search engine. If I search for “Maserati driver MMDA QC,” who is to say that is not news for me, at the moment of the search? As search engines like Google add an ever-increasing number of touchpoints, our searches become more and more customized—and our definition of what constitutes news ever narrower.
8. In social media (only 10 years old this year, if we date the start from the turbulent origins of Facebook), the news is defined by the community of the media user: The news is what my social circle is reading or viewing or sharing. Today’s timelines might be full of updates on the siege in Sydney, but if my peers and friends and followers are obsessing over a neighborhood singer caught on video, who is to say that is not news too?
9. It seems clear that search media and social media have made the horrors Warren and Brandeis described a daily, if not an hourly, nightmare. It was impossible, 125 years ago, to imagine a Kim Kardashian, who gleefully blurs the lines between public and private, between secret and intimate. Today, it is impossible to imagine a media landscape without its share of Kardashians, both legit and wannabe (although it might be hard to tell the difference).
10. Should our concept of privacy be stretched to include, or rather to exclude, new forms of idle gossip, the latest excesses of the “trade”? As more and more people bare themselves on social media, and as more uses of search media turn up more examples of this and other kinds of baring, should the right to privacy be extended, to a broader right to be let alone?
11. I think the answer is suggested by Warren and Brandeis themselves. The key idea in the following pivotal paragraph can be found at the very end.
“These considerations lead to the conclusion that the protection afforded to thoughts, sentiments, and emotions, expressed through the medium of writing or of the arts, so far as it consists in preventing publication, is merely an instance of the enforcement of the more general right of the individual to be let alone. It is like the right not to be assaulted or beaten, the right not to be imprisoned, the right not to be maliciously prosecuted, the right not to be defamed. In each of these rights, as indeed in all other rights recognized by the law, there inheres the quality of being owned or possessed—and (as that is the distinguishing attribute of property) there may be some propriety in speaking of those rights as property. But, obviously, they bear little resemblance to what is ordinarily comprehended under that term. 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.”
12. I take this to mean: When our concept of personality has changed (as in Facebook for instance, where we can be “poked,” our posts “liked,” our “wall” littered with messages, our space invaded by “friends of friends”), our concept of privacy should change accordingly.