In 1890, Samuel Warren and Louis Brandeis published “The Right to Privacy” in the Harvard Law Review. According to Jill Lepore (The New Yorker), the article proposed that “there exists a legal right to be let alone – a right that had never been defined before.” It was necessary, Warren and Brandeis thought, because “The intensity and complexity of life, attendant upon advancing civilization have rendered necessary some retreat from the world, and man, under the refining influence of culture, has become more sensitive to publicity, so that solitude and privacy have become more essential to the individual; but modern enterprise and invention have, through invasions upon his privacy, subjected him to mental pain and distress, far greater than could be inflicted by mere bodily injury. . . . Instantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life; and numerous mechanical devices threaten to make good the prediction that ‘what is whispered in the closet shall be proclaimed from the house-tops.’” The article has been the basis of privacy law ever since.
According to Lepore, “Warren and Brandeis believed that the violation of the right to privacy constitutes a kind of wound—a puncturing of the soul—that might, finally, deaden our minds. The stakes had become, suddenly, very high.”
But the creation of a right to privacy has a backstory that \has to do with the shifting notions of mystery and secrecy, publicity and privacy.
In the early modern period, Lepore says, “the phrase “mysteries of state” meant both state secrets and monarchical power and right—not what God knows, and we do not know and must accept, but what the king knows, and we do not.” America was founded as a republic without mysteries: “In a republic, there ought to be no mysteries of state: all was to be revealed to the people. It would be revealed, chiefly, in print, and, especially, in newspapers, where, as Thomas Jefferson explained, the ‘contest of opinion’ was waged.” Publicity is a good, bringing out into the open the secrets on which tyranny and conspiracy thrive. Poe is a poet of publicity: “Nothing ever remains hidden. Crimes must be solved. Walls must be breached. Tombs must be unearthed. Envelopes must be opened.”
By the time Warren and Brandeis wrote, Americans at least had become skittish about a culture of pure publicity: “Nineteenth-century Americans were obsessed with the idea of privacy and the physical boundaries that marked it, like the walls of a house, and, equally, with the holes in those walls, like mail slots cut into doors.” The meaning of “publicity” shifted accordingly: “By the end of the nineteenth century, publicity, which . . . had meant transparency (the opposite of secrecy), had come to mean the attention of the press (the opposite of privacy).”
The result is that Americans carry forward, in a confused and paradoxical way, older impulses. We favor publicity and transparency as much as the founders, and yet we want to be left alone. Lepore puts the point sharply: “This has led, in our own time, to the paradox of an American culture obsessed, at once, with being seen and with being hidden, a world in which the only thing more cherished than privacy is publicity. In this world, we chronicle our lives on Facebook while demanding the latest and best form of privacy protection—ciphers of numbers and letters—so that no one can violate the selves we have so entirely contrived to expose.”
Foe Lepore, though, the backstory goes even deeper, and has to do with the shifting of the location of the holy in the aftermath of the Reformation. “Secret government programs that pry into people’s private affairs are bound up with ideas about secrecy and privacy that arose during the process by which the mysterious became secular. The mysteries of the Church are beyond the knowledge of any man and, therefore, outside the scope of the state. During the Reformation, Protestants rejected many mysteries as superstitions, and what was mysterious then began to move from priests to princes.”
Secrecy was once a quality of the sacred, the church; it became the province of the sacred state in the early modern period; and in what Lepore calls a “creepy” development, its locus is now the sacred individual: “Something creepy happened when mystery became secular, secrecy became a technology, and privacy became a right. The inviolability of the self replaced the inscrutability of God.”
“No wonder,” she concludes, “people got buggy about it.”