By: Spandana Singh
On December 15, 1890, Louis Brandeis, a lawyer and former associate justice to the Supreme Court and attorney Samuel D. Warren authored and published “The Right to Privacy” in the December edition of the Harvard Law Review.
The publication, which defines the “right to privacy” as the “right to be let alone” is considered the first major declaration of privacy as a fundamental right in the United States. The piece was written in the context of emerging information technologies such as photography and methodologies such as sensationalist journalism, which were becoming increasingly prevalent at the time. The content of the publication has since been expanded upon in cases such as Olmstead v. United States (1928) and Katz v. United States (1967) to include other forms of information technology such as telephones and to establish that individuals have a “reasonable expectation of privacy”.
The legacy of “The Right to Privacy” and Brandeis has had a profound influence on the information, technology and privacy landscape in the United States. In the 1970’s for example, the Federal Trade Commission established the Fair Information Practice Principles (FIPPs) to ensure fairness and safety in the management of electronic information. However, despite evolution in policies and standards to protect privacy and encourage responsible practices, consumers today are still vulnerable and uneducated when it comes to how their personal information is being collected and maintained.
A 2016 Pew Research Center study, which was commissioned following the 2013 Snowden leaks, revealed that almost half (47%) of Americans struggled to understand the extent and nature of the data collected about them, and only a small minority of the population expressed confidence in the security of their communication channels as well as the organizations, both private and public, that maintained them. Furthermore, the report revealed that 91% of adults believed that consumers had lost control over their personal information and the practices which govern them. These statistics seem paradoxical given that the United States, thanks to Brandeis’ legacy, is considered a champion of privacy and information protections around the world.
However, when compared to recent events that have impacted the American consumer base, such as the extensive data breach at consumer credit reporting agency Equifax, which compromised the data of over 145 million Americans, these opinions make far more sense. The Equifax breach is just one example of the weaknesses that exist in information protection policies today and the response to the crisis demonstrates how these policies are symptomatic of a larger problem.
Following the breach, some policymakers began to push for new legislation that would increase consumer data protections. Currently, New York law states that companies can compile personally identifiable information (PII) on users, but are not required to meet data security standards and notify consumers of breaches unless this information includes their social security number.
Despite attempts to introduce newer, better legislation that would protect consumers, increase their mechanisms for redress and enhance their control and involvement in the data collection and maintenance process, many believe that there is unlikely to be a favorable outcome passed, which raises the question, how far do attacks need to go, how deep do vulnerabilities need to be and how much harm needs to be done to the American consumer base before necessary steps are taken? Louis Brandeis introduced some fundamental, guiding ideas, it’s now on policymakers to take up the mantle and defend them.
Spandana Singh is an Intern on the East West Institute's Global Cooperation in Cyberspace team. She graduated from the University of California, Berkeley with a B.A. in International Development and Media, with a focus on technology. She previously served as a Public Policy Fellow at Twitter in San Francisco and is also currently a Millennial Public Policy Fellow on the Open Technology Institute team at New America.