As Americans we have an expectation of privacy in our personal affairs and presume this to be a fundamental right; however, the word ‘privacy’ is not to be found in the text of the U.S. Constitution or the Declaration of Independence, and it appears only once in the Texas Constitution (in discussing the rights of crime victims to be treated with “dignity and privacy” throughout the criminal justice process). So where does this notion of right come from? Almost 90 years ago, Justice Luis Brandeis wrote in Olmstead v. United States, that the authors of the U.S. Constitution conferred upon citizens “the right to be let alone — the most comprehensive of rights and the right most valued by civilized men.” Justice Brandeis asserted that this right was essential to a free society and was inviolable, a view most of us share.
Enter the digital age. We have become data sets. This is true in our personal and professional lives. As a function of technological progress we are rapidly losing the ability to personally possess and keep safe our personal documents and data. We are a networked society where data storage is increasingly being forced to the cloud, to be stored at locations and by entities unknown to us. Many business exist to gather and aggregate and sell our personal data so that we may be effectively be targeted by advertisers. We trust that the keepers of our information will protect our data; however, recent hacks of Sony and celebrity accounts have driven home the point that those storing our personal and professional information are poor guardians of our data.
Is this just the price we pay for progress – foregoing an expectation of solitude, seclusion, and security in our information? Former Sun Microsystems CEO, Scott McNealy noted in 1999, “You have zero privacy anyway. Get over it.” While technology has made the invading the privacy of a person or institution substantially easier, and the damages flowing therefrom are now considerably broader in scope, Texas has not yet yielded to McNealy’s Orwellian view. Our courts still provide remedies in civil litigation for wrongful acts that intrude on our seclusion, publicly disclose our private facts, or where one appropriates our names or likenesses. Those who invade our private affairs can still be held accountable in civil and criminal courts.