The Significance of Privacy in Constructing the Person

Photo: HLS Historical and Special Collections

The recognition of privacy as essential for both the well-being of individuals and the multiplicity of networks we constitute has only become more urgent as technological innovation continues to erode the distinction between our private and public lives. Unfortunately, the bond between privacy and the individual is often glossed over, framed a black box which undermines the ability and will necessary for its defense. Understanding how the expectation of privacy enable useful expressions of our thoughts and emotions is necessary if we are committed to protecting what it means to be human. The Right to Privacy, written in 1890 by attorney Samuel Warren and eventual US Supreme Court Justice Louis Brandeis is a pillar on which American law has leaned on in its construction and defense of privacy defying unrelenting technological innovation and preserving our ability to be.

“to protect Americans in their beliefs, their thoughts, their emotions and their sensations … conferred, as against the Government, the right to be let alone–the most comprehensive of rights and the right most valued by civilized men.”

Warren and Brandeis argue that the “pain, pleasure, and profit of life” are not exclusive to a physical realm but share a common space with spiritual processes including “thoughts, emotions, and sensations” and whose violation constitutes a greater threat to the person than physical transgressions.1Warren, Samuel D. and Louis D. Brandeis. 1890. “The Right to Privacy.” Harvard Law Review 4(5):195. The argument relies on conceiving expressions of thoughts, emotions, and sensations regardless of the medium as inseparable from the individual. Violating the privacy conferred to a work by its author represents an act of aggression which inhibits the author’s ability to constitute their personality in the same way a physical altercation resulting in a broken limb deprives the victim of their full capacity to shape themselves and their physical world. 2Warren, Samuel D. and Louis D. Brandeis. 1890. “The Right to Privacy.” Harvard Law Review 4(5):199.

From a broader perspective, the scale at which modern technology can act on the individual and reduce our existence to a handful of entries within enormous databases distorts and trivializes our existence which also works to inhibit our ability to shape ourselves. Although unimaginable when Warren and Brandeis wrote their article, Big Data undeniably suppresses and distorts the individual, their aspirations, and the ability to create the person they want to embody. This distortion will intensify as Big Data continues to graft data from disparate sources and be forced to reconcile differing data collection standards and objectives. Wide-scale privacy violations enabled by Big Data trivialize and distort the individual suppressing their ability to be, and to become, the person they would like to be. 3Warren, Samuel D. and Louis D. Brandeis. 1890. “The Right to Privacy.” Harvard Law Review 4(5):196, 205.

Although attitudes towards privacy and what it means to the individual continues to evolve as technology embeds itself deeper into the fabric of our reality, there is a minimum threshold required by both individuals and their communities need to reproduce and improve themselves. The space privacy affords for experimentation, whether for an individual to freely reinvent themselves or for a community to shed oppressive ideas and practices as the civil and women’s rights movements demonstrated, privacy is essential to these ends and the protection of what it means to be human.

“But now that the modern devices afford abundant opportunities for the perpetration of such wrongs without any participation by the injured party, the protection granted by the law must be placed upon a broader foundation.” 4Warren, Samuel D. and Louis D. Brandeis. 1890. “The Right to Privacy.” Harvard Law Review 4(5):211.

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