Privacy is Dead! A History

In 1897 Mark Twain was contacted by the New York Journal “to inquire whether the rumors that he was gravely ill or already dead were indeed true.” His response as recorded in the article published on 2 June 1897 read in part “The report of my death was an exaggeration” (Petsko, 2018).

Not long before Twain was feared dead, another death was prematurely heralded: The death of privacy. Why? The invention of the Kodak camera in 1888. A technology that stressed social mores and forever changed the concept of privacy.

The idea of what we might now call candid photography was abhorrent to many and found expression in the coining of the term “Kodak Fiend.” Photography has a creepy line too.

Have you seen the Kodak fiend? Well, he has seen you. He caught your expression yesterday while you were recently talking at the Post Office. He has taken you at a disadvantage and transfixed your uncouth position and passed it on to be laughed at by friend and foe alike. His click is heard on every hand. He is merciless and omnipresent and has as little conscience and respect for proprieties as the veriest hoodlum.…

—The Hawaiian Gazette, 1890

From Portraiture to Biometrics

Clearly, given the remarkable commercial success of this camera (the Kodak Brownie was introduced two years later in 1890 with even greater success), nobody was put off by privacy concerns.

In their seminal 1890 Harvard Law Review (HLR) article, The Right to Privacy, Samuel D. Warren and Louis D. Brandeis state: “Political, social, and economic changes entail the recognition of new rights, and the common law, in its eternal youth, grows to meet the demands of society.”

This idea will likely be relevant well into the future. It touches on what has become a recurring three-fold negotiation between technology, privacy, and the law that occurs – that needs to occur – with ever greater frequency as the speed of technological change increases: a speed at which the law is not designed to travel.

It is an evolution from Kodak Fiends to Glassholes. ^[1] From candid portraits to biometrics. From “the right to be let alone” ^[2] to the “right to privacy.”

The Kodak Fiend (Excerpted)
Joel Benton
Century Magazine/Volume 47/Issue 5/
1894

OH, doan’ go out, ‘Lias, doan’ go out,
For de kodak fiend he’s all about;

You know yo’ features mighty plain,
An’ he haunt de street an’ de meader-lane;

He doan’ care w’eder you clean or not,
An’ he ‘ll take yo’ rags right on de spot.

Ef he do it now wid yo’ ‘lasses face,
I tell you, ‘Lias, you ‘ll be ‘n disgrace.

No, doan’ go out, ‘Lias, doan’ go out,
For de kodak fiend he’s all about;
…

The Law Falters. The Legislature Remedies. Privacy Lives.

“Recent inventions and business methods call attention to the next step which must be taken for the protection of the person, and for securing to the individual what Judge Cooley calls the right ‘to be let alone.’ Instantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life; and numerous mechanical devices threatened to make good the prediction that “what is whispered in the closet shall be proclaimed from the house-tops.”

—Warren and Brandeis, 1890

In The Right to Privacy, widely considered one of the most influential pieces of legal scholarship, Warren and Brandeis argue that the right to privacy (articulated as ‘the right to be let alone’ by Cooley) “forms the common foundation of the freedom of conscience outlined in the” First, Fourth, and Fifth Amendments. “Yet, the word ‘privacy’ itself appears nowhere in the U.S. Constitution” (Head, 2019). Head calls the right to privacy a “time-travel paradox of constitutional law: Even though it didn’t exist as a constitutional doctrine until 1961 and didn’t form the basis of a Supreme Court ruling until 1965, it is, in some respects, the oldest constitutional right.”

But Now Privacy Really is Dead, Isn’t it?

“If you’re among the billions of people using Chrome, then Google’s stark new data harvesting disclosures should come as a nasty surprise,” writes Zak Doffman in Forbes. As a result of Apple’s forcing disclosure Doffman offers that “The last decade has seen a steady erosion of your privacy. Free to use apps and platforms have monetized you and your data. You have traded away your privacy for that convenience” (Doffman, 2021).

Surely privacy is dead.

Even Kodak Fiends are alive and well. Just ask former congresswoman Katie Hill who “resigned after intimate photographs of her were published online without her consent…” (Levinson, 2021).

But it is a tale of two cities. In one instance it appears our privacy, our data privacy inasmuch as the concept exists, has been encroached far beyond what the typical user understood. Or was meant to understand. And new terms have entered the technological lexicon to describe this latest assault on privacy: Data Monopolies, Surveillance Advertising, and the Data Industrial Complex. These are the Kodak Fiends writ large. Our data is concatenated, aggregated, “shared” and used at a bewildering rate. Surely now privacy is dead.

But in the other instance, we have the passage and continual evolution of the GDPR. Schrems I and Schrems II. A litany of suits filed and congressional inquiries. California’s CCPA, the passage of the CPRA and with it coming into force, the California Privacy Protection Agency (CPPA), and Virginia’s Consumer Data Protection Act (CDPA). And of course, there are privacy-related laws in every state and every country in the world. And the technology and processes designed to affect data privacy are a thriving business. Privacy is now even considered a competitive advantage. Organizations are adopting trust centers. Managing privacy and acquiring the expertise to manage it is a top-of-mind concern for businesses of all sizes. We are thankfully far from an inexorable dissolution of privacy in business, social mores, or laws.
Privacy is not dead.

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