The Literary Language of Privacy—How Judges' Use of Literature Reveals Images of Privacy in the Law

George Orwell’s Nineteen Eighty-Four. When we think of literary works and privacy, that is the first book that comes to mind, and the same is true for judges penning privacy law opinions too. Although the novel is notable for expressing fears of authoritarian overreach, other literary works offer judges a tool for describing the plights of parties before them—parties who seek to vindicate breaches of privacy in many different forms. Nineteen Eighty-Four particularly suits cases that challenge government surveillance or non-governmental wiretapping.

References to Franz Kafka and Joseph Heller illuminate other privacy harms, such as unease with governmental collection, manipulation, and release of data. Nathaniel Hawthorne’s The Scarlet Letter comments on punishment via exposure of stigmatizing information. William Shakespeare, centuries ago, spoke knowingly of the peculiar pain arising from injury to one’s reputation. Judges have referenced all these works in majority and dissenting opinions to help make concrete the often amorphous, but still very real, damage that privacy breaches can cause.

This Article organizes many of these opinions according to the type of privacy invasion and provides examples of how judges’ language can help us show why the law provides remedies, however imperfect and unevenly provided, for privacy harms.