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100 Years of Privacy, 2 First, many scholars, dating back to Roscoe Pound in 1915 and Paul Freund in 1975, have viewed privacy as an expression of one's personality or personhood, focusing upon the right of the individual to define his or her essence as a human being. 13 Second, closely akin to the "personhood" cluster, are those scholars such as Louis Henkin who have marked privacy within the boundaries of autonomy―the moral freedom of the individual to engage in his or her own thoughts, actions and decisions. 14 A third cluster, typified by Alan Westin and Charles Fried, have seen privacy―at least in large part―in terms of citizens' ability to regulate information about themselves, and thus control their relationships with other human beings, such that individuals have the right to decide "when, how, and to what extent information about them is communicated to others." 15 Finally, a fourth cluster of scholars have taken a more noncommittal, mix‑and‑match approach, breaking down privacy into two or three essential components, such as Ruth Gavison's "secrecy, anonymity and solitude," 16 and the "repose, sanctuary and intimate decision" of a California Law Review commentator. 17 The method de rigueur in legal scholarship has been for the author to examine the previously‑favored definition of privacy, tear it down to its bones, expose its fallacies, and establish a new contender for the crown. Thus, Professor Gavison in the Yale Law Journal in 1980 sought to refute those before her (including Fried and Westin) who had labeled privacy as a form of control over information, and advanced a putatively neutral definition of privacy bottomed on secrecy, anonymity and solitude. 18 Louis Henkin, writing in the Columbia Law Review in 1974, exploded the prevailing notion of privacy as "freedom from official intrusion," and gave us a privacy bottomed on a "zone of prima facie autonomy." 19 In a recent Harvard piece, Professor Jed Rubenfeld gunned down "autonomy" and "personhood" as definitions, and set up privacy as a form of "anti‑totalitarianism," concluding that the right of privacy is "the right not to have the course of one's life dictated by [a progressively normalizing] state." 20 This Article will show that each of these definitions of privacy is sensible and useful, and adds to the understanding of that concept as it has evolved in American law. Yet standing alone, none of these definitions tells the century‑long story in a fashion that Warren and Brandeis would find satisfying, or particularly helpful in predicting the future course of American privacy law. Commentators have stumbled over privacy, and have failed to agree upon an acceptable definition, because they have generally focused on privacy as a philosophical or moral concept―which allows for multiplicitous definitions, as seen above―while wholly ignoring privacy as a legal concept. The latter encompasses a number of different species in American law all of which were seeded by Warren and Brandeis in 1890, and now entitle an individual to very concrete but different protections and remedies in twentieth century American law. To the extent commentators in search of theoretical definitions of privacy――such as Fried and Gavison and Rubenfeld――have intimated that such definitions are the Holy Grail which will lead us to the ultimate meaning of privacy in a legal sense, their crusade is somewhat misplaced. Although helpful in refining our understanding of various subsets of |
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