A Not Quite Contemporary View of Privacy

Privacy and Security

Article Snapshot


Richard Epstein


Harvard Journal of Law & Public Policy, Vol. 41, No. 1, pp. 95-116, 2018


Leading nineteenth-century scholars assumed that the expansion of sweeping privacy rights was an inevitable aspect of legal progress. But the history of contract and tort law shows that the courts recognized narrow, minimal privacy rights to avoid imposing burdensome duties on others.

Policy Relevance

Technological advances will often require changes to legal doctrines. To avoid doing more harm than good, policymakers should minimize these changes as much as possible.

Main Points

  • A discussion of constitutional issues framed as analysis of "contemporary" law implies that the solutions needed to resolve these issues today are qualitatively different from those faced by the original authors of the constitution; it is best to be skeptical of such claims of novelty.
  • The principles developed in early times concerning property, tort law, and contract law have great durability; many modern legal changes work less well than the common or Roman law rules they displaced.
  • The most famous law review article on privacy, Samuel Warren and Louis Brandeis's “The Right to Privacy,” is written as if the law of trespass and assault will inevitably grow to protect privacy; Warren and Brandeis assume that it is easy to expand rights without doing more harm than good.
  • Articulating a correct set of rights is difficult, because what any individual gains in the role of a possible claimant is offset by what he would lose as a possible defendant.
    • Most people would readily agree to give up their right to violently attack others, to be protected from violent attacks.
    • Few would or have accepted a duty to recognize rights of privacy as broad as those described by Warren and Brandeis, establishing a general “right to be left alone.”
  • The right to privacy is best understood by reference to specific legal doctrines, such as the law of confidentiality agreements, an important aspect of contract law; many complex issues arise in confidentiality cases, but none of these give rise to claims as extravagant as the “right to be left alone.”
  • In privacy cases involving wiretapping, the Supreme Court asks whether the surveillance target has a reasonable expectation of privacy; the rule helps avoid the need for everyone to take costly measures to keep their information private, while shielding others from liability when information is spoken loudly in a public place.
  • Later privacy cases gave individuals a property interest in their own name and likeness, resulting in the creation of a market for in advertisements; each individual can manage the use of her likeness to form a coherent "brand," a great commercial boon.
  • Major technological advances will always spur some rethinking of legal rules; the difficulty is to find the minimum extent to which existing rules must be changed to eliminate difficulties arising from changes in circumstances.


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