Rethinking Reasonable Expectations of Privacy in Online Social Networks

In 1890, Warren and Brandeis “invented” the common law right to privacy in the United States. They declared the need for a right to privacy – “to be let alone” – because technological advancements (photography) and business methods (yellow journalism) enabled the media to bring previously private details to the attention of a much larger audience. Warren and Brandeis declared, “[i]nstantaneous 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.’” Because of the technological innovations of their day, the authors noted that, “solitude and privacy have become more essential to the individual” than in the past. Concern over the sacredness of private and domestic life led to the conclusion that “[t]he law . . . must protect privacy on the principle of an ‘inviolate personality.’” In essence, Warren and Brandeis intended to introduce continental European privacy concepts into U.S. jurisprudence.