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The Brandeis Déjà vu: Looking at the Then and Now of Media Privacy1 

Eric Paik* 

INTRODUCTION 

  The accelerated development of cyber technology stands in distinction in a world that 
has, in the past few decades, witnessed strong dynamicity all throughout. It is easy to put the 
developmental rapidity of cyber technology into perspective, if one were to take the example of 
current U.S privacy laws and recognize them as being made antique by growing cyber-
technology; a monumental reaction of the American legal system concerning the federal 
collection of personal information in computer databases was the Privacy Act of 1974, a 
framework that has been preserved to this day on how the U.S government “gathers, shares, and 
protects Americans’ personal information.2 

Needless to say, forty years of technological development has long rendered the Privacy 
Act insufficient, resulting in a problematic amount of concerns and a concerning amount of 
problems related to data privacy and the American Government.3 Expectedly, Government 
collection and utilization of digital data has received an abundance of media attention in the past 
few years, but we must appropriately remind ourselves that the urgent matter of privacy 
protection is one that encompasses much more, for example, the vast market of electronic 
commerce; new technology is everywhere to be found, and so are privacy concerns that come 
with it. After all, we live in a world where five exabytes (the equivalent amount of information, 
if hypothetically digitalized, accumulated throughout human history of texts and images until 
2003) of information is produced in a matter of minutes.4 There is enough information on 
everyone’s plates. Simply put, there is an abundance of highly portable information, 
technological ways to access the said information, entities that are interested in utilizing the 
information, and a shortage of ways to stop the daunting consequence of the whole situation: 
privacy invasion. 

 If, by any chance, the given situation (which is seemingly unique to our modern digital 
age) triggers a déjà vu, that is because we have dealt with this issue before, more than a hundred 
years ago. Former Supreme Court Justice Louis D. Brandeis and Samuel D. Warren in their 
landmark article, The Right to Privacy, dealt with the legal conceptualization of privacy and the 
possible solutions of privacy intrusion in a time that witnessed the increasing usage of 
photographic technology by the media.5 With The Rights to Privacy being a foundational article 
of legal philosophy in American privacy law, it is an appropriate piece of literature that we could 
refer back to for the acquisition of guidance in thinking about privacy and its legal guardian 

																																																													
* Undergraduate at Brandeis University, Class of 2017 
1 This article is part of the Brandeis University Law Journal 2016 Special Volume, which is included in the "Louis 
D. Brandeis: An Inspiring Life” digital exhibition, an effort of the Brandeis Archives & Special Collections for the 
100th anniversary celebration of Justice Brandeis's appointment to the Supreme Court. 
2 State of Federal Privacy and Data Security Law: Lagging Behind the Times?: 1 
3 The Teaching Company/The Great Courses. “Privacy for the Cyber Age.” Kanopy video, 33:00. 2013. 
https://brandeis.kanopystreaming.com/video/privacy-cyber-age 
 
4 State of Federal Privacy and Data Security Law: Lagging Behind the Times?: 3 
5 Samuel D. Warren and Louis D. Brandeis, “The Right to Privacy”, Harvard Law Review. (1890): 195 



 

  

today. So, therefore, it is in the following sections of this essay where we observe The Rights to 
Privacy in its legal philosophy and then attempt at determining its applicability in today’s cyber-
dominated world. In doing so, we specifically explore the birth of the privacy tort through the 
publication of The Right to Privacy, and then look towards the changing definition of privacy tort 
factors in today’s social media that necessitates a re-evaluation of Brandeis and Warren’s legal 
genius.  

THE RIGHT TO PRIVACY (1980)—BIRTH OF THE PRIVACY TORT 

From the perspective of tort law at the time, Warren and Brandeis’s argument that 
tort law should remedy psychological and emotional harm was fairly radical. 
Their arguments about its evolutionary potential notwithstanding, the common 
law had traditionally rejected claims of emotional injury and had required 
plaintiffs to prove physical or property injuries to recover damages.6 

The Right to Privacy still maintains its identity as a monumental article on the subject of 
legal protection of privacy.  Written by Louis D. Brandeis and Samuel D. Warren, and Published 
in the Harvard Law Review in 1890, The Right to Privacy famously referred to Justice Thomas 
M. Cooley’s definition of privacy as the “right to be let alone,” and detailed the emergent 
concern of the violation of privacy due to technological inventions, specifically the technology 
utilized by the press.7 The increasing focus of print media on private affairs, aided by the newly 
implemented use of photography, had essentially created a market of information entailing 
rumors and personal details, one that was “pursued with industry as well as effrontery.”8 This 
situation had given rise to two concerns for the co-authors of The Right to Privacy, one of which 
was the fallen integrity and standards of print media, and another which carried more weight of 
legal significance was the lack of protection that privacy received.9  Privacy in the interactions 
among private parties, though a growing concern, was not sufficiently protected by congressional 
statutes, and neither was it protected sufficiently through common law. In fact, the legal concept 
of privacy in the wake of growing technology was one without concrete identity. The initiating 
section of the article The Right to Privacy, therefore, spoke of the chronological appropriateness 
of a new legal recognition of rights: 

That the individual shall have full protection in person and in property is a principle as 
old as the common law; but it has been found necessary from time to time to define anew 
the exact nature and extent of such protection. Political, social, and economic changes 
entail the recognition of new rights.10 

Brandeis and Warren explained that the “right to be let alone,” a product of the evolving 
interpretation of our basic right to life, faced a new chapter of threatening business trend in 
yellow journalism; even seemingly benign gossip could be utilized with evil intent, if the gossip 
accompanied large public presence, to jeopardize the emotional well-being of an individual.11 
However, at the time of the article’s publication, emotional injury was not recognized by courts 
																																																													
6 Neil M. Richards, “Puzzle of Brandeis, Privacy, and Speech.” Vanderbilt Law Review 63.5 (2010): 1303 
7 Warren and Brandeis, “The Right to Privacy,” Harvard Law Review 4.5 (1890): 195 
8 Ibid., 196 
9 Ibid., 196 
10 Warren and Brandeis, “The Right to Privacy,” Harvard Law Review 4.5 (1890): 193 
11 Ibid., 196 



 

  

as a legal injury. Therefore, a part of Brandeis and Warren’s argument was that emotional injury 
was deserving of a legal recognition and remedy. Their philosophical basis in pushing this 
unconventional idea could be found towards the beginning of the article, which reads: “The 
intense intellectual and emotional life, and the heightening of sensations which came with the 
advance of civilization, made it clear to men that only a part of the pain, pleasure, and profit of 
life lay in physical things.”12 Brandeis and Warren respected the intangible value in honoring the 
“inviolate personality” of people, and so felt the need for the legal recognition of emotional harm 
as a legitimate injury.13  

Following the development of their logic, what Brandeis and Warren ultimately 
advocated was tort remedy for the emotional damage caused by privacy invasion. However, even 
in the case of the legal recognition of emotional harm as a legal injury, the existing tort law 
would not have protected privacy as described by Brandeis and Warren. What was laid out in 
The Right to Privacy, therefore, was the push for the creation of a new category of tort law that 
specifically protected privacy. In communicating this, Brandeis and Warren showcased their 
excellence in portraying the standalone uniqueness of the subject of privacy, one that 
demonstrated the lack of protection privacy received from already existing parts of the common 
law; privacy was embedded with characteristic details which separated it from the seemingly 
related legal concepts of property as well as defamation, and so privacy could not sufficiently be 
accommodated for through the principles of either. In clarifying this uniqueness of privacy in its 
qualities as a subject of tort, the co-authors first compared the nature of defamation (slander and 
libel) to that of privacy, highlighting the value of emotional and spiritual well-being that is 
unique to privacy and absent in defamation:  

Owing to the nature of the instruments by which privacy is invaded, the injury inflicted 
bears a superficial resemblance to the wrongs dealt with by the law of slander and of 
libel...The principle on which the law of defamation rests, covers, however, a radically 
different class of effects from those for which attention is now asked. It deals only with 
damage to reputation, with the injury done to the individual in his external relations to the 
community, by lowering him in the estimation of his fellows. The matter published of 
him, however widely circulated, and however unsuited to publicity, must, in order to be 
actionable, have a direct tendency to injure him in his intercourse with others, and even if 
in writing or in print, must subject him to the hatred, ridicule, or contempt of his 
fellowmen, -- the effect of the publication upon his estimate of himself and upon his own 
feelings nor forming an essential element in the cause of action. In short, the wrongs and 
correlative rights recognized by the law of slander and libel are in their nature material 
rather than spiritual.14 

Furthermore, the co-authors stated that though the category of property in tort law secured “to 
each individual the right of determining, ordinarily, to what extent his thoughts, sentiments, and 
emotions shall be communicated to others,”15 it did so in a problematic fashion that only 
concerned published material. Property law did not, in its narrowness, deal with instances in 
which the issue at stake had nothing to do with obtaining profit through publication but rather the 
																																																													
12 Ibid., 195 
13 Ibid., 205 
14 Warren and Brandeis, “The Right to Privacy,” Harvard Law Review 4.5 (1890): 197 
15 Ibid., 198 



 

  

“relief afforded by the ability to prevent any publication at all.”16 In other words, property law 
came fairly close to protecting the essence of privacy, but its legal boundaries only included 
either published information or information which the rightful owner had the intention of 
publishing. What Brandeis and Warren stated was that the fundamental value of protecting the 
extent to which an individual shares her/his information should not be about the value of the 
intellectual information as a publishable or published material:17 

A man records in a letter to his son, or in his diary, that he did not dine with his wife on a 
certain day. No one into whose hands those papers fall could publish them to the world, 
even if possession of the documents had been obtained rightfully; and the prohibition 
would not be confined to the publication of a copy of the letter itself, or of the diary 
entry; the restraint extends also to a publication of the contents. What is the thing which 
is protected? Surely, not the intellectual act of recording the fact that the husband did not 
dine with his wife, but that fact itself. It is not the intellectual product, but the domestic 
occurrence.18 

In both examples of the extension of tort law the emotional suffering of an individual in the 
public disclosure of unpublished private facts, which was the emergent concern, was 
unprotected. Therefore, Brandeis and Warren propounded it necessary that the common law 
made fitting adjustments for the demanding and urgent situation, by first viewing emotional 
harm as a legal injury and then formulating a new tort recognition of privacy as a unique 
subject.19 

 Even to this day The Right to Privacy is very deserving of its fame; it recognized the 
philosophical essence of the American common law dealing with one’s right “to be let alone” 
which was more or less lost in legal translation and only protected in a limited sense. In other 
words, Louis D. Brandeis and Samuel D. Warren had addressed the serious issue of emotional 
damage in the case of unauthorized and undesired circulation of unpublished information, one 
that slipped past the protection of property and against defamation, and together philosophized 
the legal category of privacy tort in reaction. While recognizing the significant value of what 
Brandeis and Warren advocated a century ago, the following section highlights a few factors that 
have changed and require further attention in how we view privacy tort today.  

IMPORTANT FACTORS IN MODERN APPLICATION  

A more modern and specific interpretation of privacy tort was constructed by 
William Lloyd Prosser some seventy years after the article “The Right to Privacy” 
was published.20 Prosser’s take on privacy tort in itself has merit as well as 
compatibility issues in its application to today’s world, with complex legal 
examples being notably stated by scholars such as Professor Danielle Keats 
Citron.21 However, this essay solely observes the broad original ideas of Louis D. 

																																																													
16 Warren and Brandeis, “The Right to Privacy,” Harvard Law Review 4.5 (1890): 200 
17 Ibid. 
18 Ibid., 201 
19 Ibid. 
20 Danielle Keats Citron. “Mainstreaming Privacy Torts.” California Law Review 98.6 (2010): 1805 
21 Ibid. 
 



 

  

Brandeis and Samuel D. Warren in their application to today’s world without 
considering William Lloyd Prosser’s more specific interpretation of privacy tort. 

The simplified essence of The Right to Privacy would be best described as a discussion 
about the much needed tort remedy for emotional injury arising from the undesired disclosure of 
unpublished private facts. In an attempt to translate that philosophy into today’s world, we must 
consider that modern societal complexity has changed the types and depth of the injury at risk as 
well as the perception of terms such as “unpublished” and “private facts.” Though the essence of 
the article The Right to Privacy remains more important than ever, privacy tort should, and 
already does, deal with a much more complex reality. This section of the essay, therefore, 
attempts to observe two of many factors relating to the modern application of the philosophy of 
The Right to Privacy by specifically considering the example of social media. In sub-section one, 
the discussion focuses on the difficulty in maintaining the definition of privacy as exactly 
articulated in The Right to Privacy due to the changing definition and relevancy of consent and 
private space. In sub-section two, the increasing emotional harm as well as the emergence of new 
types of harm in social media are highlighted. 

SECTION 1: GRAY AREAS OF PRIVATE SPACE AND CONSENT-WHOSE DATE IS IT 
ANYWAY? 

Given the current usage of social media, it is easy to argue that society generally 
has a lower expectation of privacy when it comes to sharing personal information 
online. That is, until their privacy is intruded upon.22  

There are a few fundamental questions that require consideration when it comes to 
discussing the ideas of “The Right to Privacy” in its applicability to today’s cyberspace. To 
initiate the discussion, we start with the nature of social media in being representative of both 
private and public elements.  

The expectation of privacy in the arena of social media, if derived from the essence of 
The Right to Privacy, is confusing due to the following statement: “the right to privacy ceases if 
an individual, or someone by consent of the individual makes public the information 
themselves.”23 Sharing information on social media is conventionally understood as a voluntary 
act which, if we were to refer to the statement above, could eliminate legal expectations of 
privacy. This is not a surprising development of logic because the common understanding of the 
intended function of social media is that “people post because they want others to read the 
information.”24 However, the added complexity of social media originates from the existence of 
adjustable privacy settings. Taking the social media giant Facebook as an example, it is apparent 
that, first of all, there are three modes of privacy settings at large: sharing information with your 
																																																													
22 Renee Prunty and Amanda Swartzendruber, “Social Media and the Fourth Amendment Privacy Protections.” In 
Privacy in the Digital Age: 21st -century Challenges to the Fourth Amendment, ed. Nancy S. Lind and Erik Rankin 
(Santa Barbara, California: Praeger, 2015), 402-403 
23 Katherine Leigh, “Developments on the Fourth Amendment and Privacy to the 21st Century.” In Privacy in the 
Digital Age: 21st-century Challenges to the Fourth Amendment, ed. Nancy S. Lind and Erik Ranking (Santa Barbara, 
California: Praeger, 2015), 14 

 
24 Meghan E. Leonard, “The Changing Expectations of Privacy in the Digital Age.” In Privacy in the Digital Age: 
21st -century Challenges to the Fourth Amendment, ed. Nancy S. Lind and Erik Rankin (Santa Barbara, California: 
Praeger, 2015), 317 



 

  

approved “friends”, sharing information with the public that uses Facebook services, and sharing 
information with the specific list of users selected. Due to the existence of different privacy 
settings and some 1.23 billion active monthly users,25 it cannot be stated that every individual 
participates in social media with the same expectation of privacy; some people have Facebook 
accounts with the expectation of sharing information with a limited group of people and they 
have the privacy setting details to help reinforce that will. What is implied through all of this is 
that social media participation does not necessarily constitute information being made public in 
the black and white sense. Instead, selective publicity seems to better describe the general 
expectation of user experience when it comes to Facebook. Put another way, limited privacy is 
what the typical user might want or expect from using Facebook.26 This gray area of situationally 
defining and expecting privacy is a source of trouble for privacy tort. 

 Considering the fact that different privacy settings generate varying user experiences 
with different execution of privacy protection, it is then crucial to understand that privacy 
settings are often complicated: “Knowing exactly which settings to choose and how to best 
protect your privacy on Facebook is difficult for even the most adept of users… In addition, the 
privacy setting options change frequently, as does the Facebook interface.”27 Social media users, 
in this case Facebook account holders, may by mistake make information “more public” than 
what they had intended. A hypothetical college student under the legal drinking age might share 
a photograph depicting the consumption of alcohol with the intention of privately sharing his/her 
enjoyment of youthful energy with friends (not in reference to the Facebook idea of “friends”) 
and unexpectedly face consequences of public viewership due to a mistake of a click or 
corporate-induced changes in privacy settings. The student in this given scenario faces privacy 
concerns, concerns that could very possibly bring with them emotional suffering, that the student 
did not anticipate or want at the time of sharing the information. However, in logical terms, this 
hypothetical student has indeed given her/his consent to Facebook regarding privacy details as 
proven by the preferences selected online. Here, we notice the difference between the issue of 
privacy back in the time of intruding print media and now: back in the day of yellow journalism 
it was easy to see that in the case of unauthorized and unwanted picture publication that very 
clearly there was no consent or the desire for disclosure, whereas in the case of Facebook it is 
difficult to assume the same. After all, “Facebook and other social-networking sites remind users 
of the privacy risks when creating an account.”28 The responsibility could be argued to belong 
solely with any user that mistakenly induces more publicity into the shared information.  

In analyzing the above situation, it might be helpful to turn to a relic of another side of 
the American legal system dealing with privacy, the fourth amendment case of Katz v. United 
States.29 The portion of our concern is the court recognition of privacy rights in instances where 
intentionally private acts take place in public settings, and the contrary denial of privacy 
protection in situations where public disclosure of information is made in an expectedly private 
space.30 So going back to Facebook, are we to understand the general utilization of social media 

																																																													
25 Lisa M. Austin, “Enough About Me: Why Privacy Is About Power, Not Consent (or Harm),” in A World Without 
Privacy: What Law Can and Should Do?, ed. Austin Sarat (New York: Cambridge University Press, 2015), 147 
26 Austin, “Why Privacy is About Power, not Consent (or Harm),” 149-150 
27 Leonard, “The Changing Expectations of Privacy in the Digital Age”, 316 
28 Ibid. 
29 Katz v. United States, 389 U.S. 347 (1967) 
30 Prunty and Swartzendruber, “Social Media and the Fourth Amendment Privacy Protections.” 402-403 



 

  

as an act with private intent in a public area, or are we to understand it as public disclosure of 
information in an area that could be private? On one side we may be justified in expecting 
privacy, and on the flip side we may not, or it really may be situational.  

The discussion about consent and the varied expectation of privacy and user experience 
was initiated above, and is continued here. The factor of consent in the example of Facebook is 
made even more confusing because of what is recognized by Professor Lisa M. Austin, in the 
chapter “Why Privacy is About Power, not Consent (or harm)” which is published in the book A 
World Without Privacy, as “implied consent.”31 The legal acceptance of implied consent means 
that privacy recognition could happen at a broad level of general user expectation without 
considering the privacy affinity of each individual user:  

General expectation of users, formed through the active architectural choices of 
Facebook, can even undercut individual consent entirely. For example, CIPPC 
complained that Facebook does not provide users with the ability to opt-out of profile 
memorialization. Although the Assistant Commissioner originally found this to 
contravene the consent requirements, she changed her view due to “reasonable 
expectations” with respect to content…Because of this, the Assistant Commissioner 
found that Facebook could rely upon implied consent. However, this implied consent is 
based on what “typical” users would want, and indeed what “users generally” would want 
in relation to another individual… Reasonable expectations of the “Facebook experience” 
trump individual consent.”32 

Facebook’s often changing privacy settings and policies, in other words, just have to conform to 
what would be legally recognized as acceptable general user standards and expectations. The fact 
that Facebook “has no obligation to change its infrastructure so as to better enable individual 
choice”33 raises the possibility that accommodation for the varying privacy needs of social media 
users is unlikely to materialize. However, the emotional damage (the amplified nature of which 
is discussed in the next section) is very plausible to arise from genuine mistakes or unexpected 
changes in privacy settings, and could be then viewed as unintended sharing of private 
information. The application of the philosophy of The Right to Privacy is challenging when 
considering such an aspect of today’s privacy. 

 This section is concluded with the peculiar example of a Facebook function called 
“tagging.” Facebook account holders often reveal information about others in photographs and 
texts through “tagging,” or name labeling, other people. “Tagging” could involve other Facebook 
users but could also involve those that have no participatory will when it comes to Facebook. 
Not only would it be a problem for individuals that are “tagged” to be unaware of their 
information being shared online, but there are only two offered solutions for a concerned and 
aware individual in that situation, and both of them are revealing of private information.34 The 
first solution is to make a Facebook account and “untag” herself/himself, and the other solution 
is a method that still involves Facebook obtaining the non-user’s email information.35 Though 

																																																													
31 Austin, “Why Privacy is About Power, not Consent (or Harm),” 151 
32 Ibid., 147 
33 Austin, “Why Privacy is About Power, not Consent (or Harm),” 152 
34 Ibid. 
35 Ibid., 153 



 

  

the legal responsibility in the given scenario might lie primarily with the user of Facebook that 
shared the information without consent, Facebook still gains profitable private information from 
the “tagged” individual in the process of problem-shooting, so the issue of legal responsibility is 
made confusing.36 

SECTION 2: AMPLIFIED INJURIES MEAN PRIVACY TORT IS INCREASINGLY 
IMPORTANT 

Renee Prunty and Amanda Swartzendruber, in their co-authored section of the book 
Privacy in the Digital Age titled Social Media and the Fourth Amendment Privacy Protections, 
identified the broad range of potential harm related to social media: “There are many possible 
negative consequences attached to the use of social media sites. These new forums create a place 
for gossip, rumors, unwanted contact, stalking, the use of data by third parties, hacking, and even 
identity theft.”37 Though Prunty and Swartzendruber’s work analyzes the aspect of government 
surveillance and its constitutionality, many of the harms that they have listed are injuries that 
remind us of what Brandeis and Warren wanted to establish a tort remedy for; malicious gossip 
and rumors were specifically stated by Brandeis and Warren to cause emotional harm that was 
toxic to the human pursuit of happiness in life. However, what cannot go unnoticed in observing 
the list of harms above is that in it are things such as stalking and unwanted contact, actions that 
could consequently entail direct physical harm or robbery. Another thing to keep in mind is the 
permanent nature of data and its availability which amplifies the emotional and reputational 
harm that was similarly discussed a century ago by Brandeis and Warren.38 This sub-section 
observes the expanded width and depth of injuries related to privacy that seek tort remedy, which 
allows us to see the increased value in privacy tort. Again, the specific example we will observe 
is social media. 

As stated above, private information in the modern world is stored digitally. Unlike a 
century ago when the private information of concern was circulated by print media and most 
likely withered away with time, private information on the web is permanent and searchable.39 
The horror of digital data permanency for those suffering emotional harm from unwanted 
disclosure of information is perfectly described by Professor Danielle Keats Citron as “evoking a 
Nietzschean image of persistent memory.”40 Combine the permanent nature of digital data with 
the fact that data is now easily searchable and globally accessible, and we have at our hands the 
groundwork for the timeless preservation and return of emotional suffering for some 
individuals.41 Besides, anybody with the intent to do so could publish private information of 
others with more ease and potential for publicity than any press we could have imagined a 
century back. Private information on the web is at a constant risk of being shared by anyone, 
with the potential to spread globally like wildfire and to be preserved in its most accessible state 
for the time to come. If that was not enough to induce fear, the increased damage of privacy 
invasion is discussed next.  

																																																													
36 Ibid. 
37 Prunty and Swartzendruber, “Social Media and the Fourth Amendment Privacy Protections.” 408 
38 Citron, “Mainstreaming Privacy Torts.” 1808 
39 Ibid. 
40 Citron, “Mainstreaming Privacy Torts.” 1813 
41 Ibid. 



 

  

 “In the past, physical injuries associated with privacy invasions typically involved a 
person's physical manifestations of emotional distress. For instance, individuals often suffered 
sleeplessness in the face of privacy invasions.”42 In today’s world of social media, the abundance 
of easily accessible personal data is allowing the occurrence of life threatening situations. 
Participants of social media that have access to personal information of others could easily 
initiate unwanted disclosure of private facts anonymously, or even by pretending to be the very 
subject of the disclosed information. Take for example the case referred to by Professor Dianne 
Cintron: “in 2009, a Long Island, New York, mother allegedly posted an advertisement on 
Craigslist seeking sex and directing men to the mother of her nine-year-old daughter's rival.”43 
With malicious intent and enough personal information, imitating identity online to initiate 
danger for another individual could be achieved by anyone. To really reveal the alarming danger 
that is privacy invasion on social media, we end the section with another disturbing example 
referred to by Professor Dianne Citron, one that serves as a powerful reminder of why the idea of 
privacy protection as suggested by Brandeis and Warren are more important than ever:  

In an early case of online impersonation, a security guard pretended to be a woman in a 
chat room, claiming that the woman wanted to be assaulted. The chat room posting 
asserted: "I want you to break down my door and rape me." It also provided the woman's 
name, address, and instructions about how to get past her building's security system. Over 
the next few weeks, nine men showed up at her door, often in the middle of the night.44 

 

CONCLUSION 

Louis D. Brandeis and Samuel D. Warren understood a very important aspect of our legal 
system: the law evolves, and justifiably so due to the betterment of our recognition of values and 
needs over time:  

Thus, in very early times, the law gave a remedy only for physical interference with life 
and property, for trespasses vi et armis. Then the "right to life" served only to protect the 
subject from battery in its various forms; liberty meant freedom from actual restraint; and 
the right to property secured to the individual his lands and his cattle. Later, there came a 
recognition of man's spiritual nature, of his feelings and his intellect.45  

Therefore, in the history of the evolution of American law, The Right to Privacy has its own 
special place for its awareness of a need for change. However, as important as it is that we take 
the principles of Brandeis and Warren to heart, it is now time for the Brandeis or Warren of our 
generation to step up to the plate. The cyber world that we inhabit is one that Brandeis and 
Warren could not have imagined more than a century ago, and quite frankly had no responsibility 
to do so. This new era of cyber development and its byproduct could only be interpreted by those 
that are responsible for it, namely us. The process of defining our newly adjusted “right to 
privacy” is to be anticipated in the days to come.  

																																																													
42 Ibid., 1817 
43 Ibid., 1818  
44 Citron, “Mainstreaming Privacy Torts.” 1818 
45 Warren and Brandeis, “The Right to Privacy,” Harvard Law Review 4.5 (1890): 193 



 

  

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