Last week I taught “The Right to Privacy” by Warren and Brandeis. Their article was published in 1890 but is filled with sentiments and quotes that could be addressing technology today. The language is a bit aged but the ideas are still clear.

This could be about social media…

The intensity and complexity of life, attendant upon advancing civilization, have rendered necessary some retreat from the world, and man, under the refining influence of culture, has become more sensitive to publicity, so that solitude and privacy have become more essential to the individual; but modern enterprise and invention have, through invasions upon his privacy, subjected him to mental pain and distress, far greater than could be inflicted by mere bodily injury.

And their fear of technology

“Instantaneous 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.”

There is lots more. Their work reflects ideas found in The Shallows by Nicholas Carr or any of the later books by Sherry Turkle. People who we generally see, to a varying degree, as anti-technology. Usually when people go against the current technology we throw about the pejorative term Luddite!

And Warren & Brandeis may have faced similar criticism in their time. The article was well received. For example an article in the 1891 Atlantic Monthly wrote (from Glancy The Invention of the Right to Privacy Arizona Law Review 1979):

…a learned and interesting article in a recent number of the Harvard Law Review, entitled The Right to Privacy. It seems that the great doctrine of Development rules not only in biology and theology, but in the law as well; so that whenever, in the long process of civilization, man generates a capacity for being made miserable by his fellows in some new way, the law, after a decent interval, steps in to protect him.

But an interesting social critique comes from Godkin writing about the Right to Privacy article in The Nation in 1890

The second reason is, that there would be no effective public support or countenance for such proceedings. There is nothing democratic societies dislike so much to-day as anything which looks like what is called “exclusiveness,” and all regard for or precautions about privacy are apt to be considered signs of exclusiveness. A man going into court, therefore, in defence of his privacy, would very rarely be an object of sympathy on the part either of a jury or the public.

He also wrote about how their ideas were interesting but maybe belonged to a certain class of individual… (from Glancy The Invention of the Right to Privacy Arizona Law Review 1979)

” ‘privacy’ has a different meaning to different classes or categories of persons, it is, for instance, one thing to a man who has always lived in his own house, and another to a man who has always lived in a boardinghouse.”

Its much too easy to look at the past and judge it from the perspective of the present. But I wonder if I called Warren & Brandeis luddites if I had been around at the time?