The underpinnings of privacy protection

T he concept of privacy as a separate right was first articulated over 100 years ago when then attorney Louis Brandeis and Samuel Warren wrote an article in the Harvard Law Review urging recognition of a right to privacy, or as they so eloquently phrased it, the "right to be let alone" [1]. Law review articles, however, are not the same as legislative acts. For several decades only a scattering of jurisdictions have recognized this right, permitt ing private tort actions and invasions of privacy. For example, the Court of Appeals for the District of Columbia cited the Brandeis and Warren article as the source of the District's common-law action for invasion of privacy in Pearson vs. Dodd, 410 F.2d 701, 703 (1968). Significantly, these early privacy cases do not deal with the question of governmental invasions of privacy, but with civil tort actions brought by one individual against another. The government 's involvement in privacy was the subject of an important Supreme Court decision in Olmstead vs. United States [13]. Before discussing this constitutional milestone, it is important to elaborate on an axiom which underlies much of the privacy discussion to follow. The U.S. Constitution is essentially a limitation on government power. It was written over 200 years ago in aft effort to strike a balance between the need for greater governmental authority in the 13 newly independent colonies and the fears that government represented the greatest threat to individual liberty. The founding fathers based their fears on several hundred years of British history during which the Crown fought intensively to retain its political and economic prerogatives. Ultimately, the Constitution represented the compromise between the twin evils of anarchy and tyranny. The principal mechanism by which this compromise was reached was to separate powers at the federal level into three branches and then to specifically enumerate the totality of those powers, inferentially leaving the remaining powers to the states. This compromise was not enough to ensure adoption of the Constitution. Many were concerned that it did not contain sufficient specific restraints on government power. As a result, 10 amendments , which we call the Bill of Rights, were added to the Constitution. There can be no doubt that the drafters of the Bill of Rights looked to the British experience and the abuses of the Crown to determine exactly what kind of governmental conduct should be prohibited.1 One of those abuses was the historical practice of the Crown of invading and searching persons' homes and then utilizing the information obtained in subsequent criminal prosecution. As a result, the Fourth Amendmen t to the Constitution provides that: