Imagining New Legalities: Privacy and Its Possibilities in the 21st Century

Imagining New Legalities: Privacy and Its Possibilities in the 21st Century

Imagining New Legalities: Privacy and Its Possibilities in the 21st Century

Imagining New Legalities: Privacy and Its Possibilities in the 21st Century


Imagining New Legalities reminds us that examining the right to privacy and the public/private distinction is an important way of mapping the forms and limits of power that can legitimately be exercised by collective bodies over individuals and by governments over their citizens. This book does not seek to provide a comprehensive overview of threats to privacy and rejoinders to them. Instead it considers several different conceptions of privacy and provides examples of legal inventiveness in confronting some contemporary challenges to the public/private distinction.

It provides a context for that consideration by surveying the meanings of privacy in three domains- -the first, involving intimacy and intimate relations; the second, implicating criminal procedure, in particular, the 4th amendment; and the third, addressing control of information in the digital age. The first two provide examples of what are taken to be classic breaches of the public/private distinction, namely instances when government intrudes in an area claimed to be private. The third has to do with voluntary circulation of information and the question of who gets to control what happens to and with that information.


Austin Sarat

Lawrence Douglas

Martha Merrill Umphrey

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, and the common law, in its eternal youth, grows to meet
the new demands of society.

Samuel Warren and Louis Brandeis, “The Right to Privacy”

Even the smallest intrusion into private space by the unwanted gaze
causes damage, because the injury caused by seeing cannot be measured.
Jeffrey Rosen, “The Unwanted Gaze: the Destruction of Privacy in America”

The fact that one cannot negotiate modernity without continuously
revealing personal information to a variety of demanders has habituated
most Americans to radically diminished informational privacy.

Richard Posner, “Privacy, Surveillance, and Law.”

People have really gotten comfortable not only sharing more information
and different kinds but more openly and with more people, and that
social norm is just something that has evolved over time.

Mark Zuckerberg, ceo, Facebook (quoted in Jeffrey Rosen,
“The Web Means the End of Forgetting”)

More than a century ago, Samuel Warren and Louis Brandeis warned of emerging threats to individual liberty associated with new business methods and technologies. “Instantaneous photographs and newspaper enterprise,” they said, “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.’” Warren and . . .

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