ABSTRACT
In 1890, Warren and Brandeis published their extraordinarily influential article The Right to Privacy, which conceptualized privacy as a right to be free from the prying eyes and ears of others. In this Article, Dean Bezanson assesses the modern currency of the privacy right concept as developed by Warren and Brandeis He argues that the boundaries on privacy described in The Right to Privacywere a response to the encroachment of urbanization on rural values and institutions and an attempt to develop communicative norms from contemporary but threatened social conventions. The author compares the social conditions of today with those of the late nineteenth century, exploring changes in the meaning of news and in the technologies of communication. He concludes that circumstances have changed so dramatically that the rationale for the right to privacy must change as well. No longer can privacy be envisioned as a set of social conventions imposed on discourse. Social attitudes are too diverse and decentralized, and the emphasis on individualism too great, to argue for any one set of social norms about communication. Accordingly, the author contends that privacy should be premised on the individual’s control of information. This approach suggests that the legal emphasis on controls over publication be shifted to a duty of confidentiality imposed on 334those possessing private information. Although this alteration in the legal status of privacy raises several difficult questions, it is necessary if we are to protect more effectively the right to privacy in the modern context.
