Introduction

Three-quarters of a century have passed since Warren and Brandeis published their germinal article, “The Right of Privacy.” In this period many hundreds of cases, ostensibly founded upon the right to privacy, have been decided, a number of statutes expressly embodying it have been enacted, and a sizeable scholarly literature has been devoted to it. Remarkably enough, however, there remains to this day considerable confusion concerning the nature of the interest which the right to privacy is designed to protect. The confusion is such that in 1956 a distinguished federal judge characterized the state of the law of privacy by likening it to a “haystack in a hurricane.” And, in 1960, the dean of tort scholars wrote a comprehensive article on the subject which, in effect, repudiates Warren and Brandeis by suggesting that privacy is not an independent value at all but rather a composite of the interests in reputation, emotional tranquility and intangible property.

My purpose in this article is to propose a general theory of individual privacy which will reconcile the divergent strands of legal development—which will put the straws back into the haystack. The need for such a theory is pressing. In the first place, the disorder in the cases and commentary offends the primary canon of all science that a single general principle of explanation is to be preferred over a congeries of discrete rules.