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Deconstructing Privacy: And Putting It Back Together Again*

Published online by Cambridge University Press:  13 January 2009

Richard A. Epstein
Law, The University of Chicago


It is a common conceit of academic writing to insist that progress in some given area of law or political theory is hampered by hopeless confusion over the meaning of certain standard terms. My usual attitude toward such claims is one of passionate rejection. Because the English language has served us well for such a long period of time, I bring a strong presumption of distrust to any claim of the conceptual poverty of ordinary language. The persistent fears of lack of understanding are in general refuted by the success of communication in ordinary life, as measured by the coordination of human behavior that language facilitates.

Research Article
Copyright © Social Philosophy and Policy Foundation 2000

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1 For discussion, see Epstein, Richard A., Torts (Boston: Aspen Law & Business, 1999), chaps. 2 and 3.Google Scholar

2 Holmes, Oliver Wendell Jr., The Common Law (Boston: Little, Brown & Co., 1881), 95.Google Scholar

3 Even under strict liability, the man who breaks into my house, steals my knife, and uses it to kill a third person has caused the harm, not I. I may be responsible if water breaks through the wall of my reservoir and floods a downstream neighbor, but I am not responsible if a stranger pumps my water into the basement of my neighbor, or stuffs my toilet with debris to flood a downstairs neighbor. See, e.g., Rickards v. Lothian, [1913] App. Cas. 263.Google Scholar

4 See Larson, Arthur, The Law of Workmen's Compensation (New York: Matthew Bender & Co., various dates).Google Scholar

5 U.S. Constitution, art. 1, sec. 10.

6 U.S. Constitution, amend. 5.

7 Euclid v. Ambler Realty Co., 272 U.S. 365, 394–95 (1926).Google Scholar Sutherland gives a set of reasons why apartment houses could be “parasite[s]” on the community, and concludes: “Under these circumstances, apartment houses, which in a different environment would be not only entirely unobjectionable but highly desirable, come very near to being nuisances.”

8 Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992).Google ScholarLucas struck down a state law that prohibited the owners of beachfront lots in hurricane-sensitive areas from building any structure at all. The case involved a so-called “regulatory taking,” because the landowner was able to claim compensation for the loss in use value of the property even though the state did not actually occupy the land.

9 New York Times v. Sullivan, 376 U.S. 254, 270 (1964).Google Scholar

10 Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975).Google Scholar

11 See, e.g., Roe v. Wade, 410 U.S. 113 (1973).Google Scholar

12 For a more detailed examination of his life, see Arkes, Hadley, The Return of George Sutherland: Restoring a Jurisprudence of Natural Rights (Princeton, NJ: Princeton University Press, 1994).Google Scholar Sutherland was one of the conservative justices of the Supreme Court who resisted the encroachments of the New Deal. But he had a soft spot for zoning, which also imposes serious limitations on property rights. Arkes discusses Euclid only briefly (ibid., 70–71) as a sound embodiment of the police power. He does not note that the decision involved the deployment of a single 68–acre plot of land, which gave rise to none of Sutherland's concerns about the safety of children, the control of vehicular traffic, and the like.

13 Epstein, Richard A., Simple Rules for a Complex World (Cambridge, MA: Harvard University Press, 1995).Google Scholar

14 For discussion, see Epstein, , Torts, 6065.Google Scholar

15 DeMay v. Roberts, 9 N.W. 146, 149 (Mich. 1881).Google Scholar

16Eaves-droppers, or such as listen under walls or windows, or the eaves of a house to hearken after discourse, and thereupon to frame slanderous and mischievous tales, are a common nuisance and presentable at the court-leet: or are indictable as the sessions, and punishable by a fine and finding securities for good behavior.” Blackstone, William, Commentaries on the Laws of England (Chicago: University of Chicago Press, 1979), 4:169.Google Scholar

17 Funk & Wagnalls New Comprehensive International Dictionary of the English Language, s.v. “eavesdrop.”

“Eavesdrop: to stand within the ‘wavesdrop’ of a house in order to listen to secrets; hence, to listen secretly to private conversation. Also trans. To listen secretly to (conversation); formerly also, to listen within the ‘eavesdrop’ of (a house); to listen to the secrets of (a person).” Oxford New English Dictionary, s.v. “eavesdrop.”

18 U.S. Constitution, amend. 4.

19 For recent Supreme Court expositions, see Lucas and Dolan v. City of Tigard, 512 U.S. 574 (1994).Google Scholar

20 For discussion, see Epstein, Richard A., Takings: Private Property and the Power of Eminent Domain (Cambridge, MA: Harvard University Press, 1985), chaps. 9 and 10.Google Scholar

21 Two of the early cases were Roach v. Harper, 105 S.E.2d 564 (W. Va. 1958)Google Scholar (landlord used hearing device to listen to tenant's private conversations); and Rhodes v. Graham, 37 S.W.2d 46 (Ky. 1931)Google Scholar (tapping telephone wires).

22 Katz v. United States, 389 U.S. 347 (1967).Google Scholar

23 Nader v. General Motors, 255 N.E.2d 765, 771 (N.Y. 1970).Google Scholar

24 Schult: v. Frankfort Marine Accident & Plate Glass Ins. Co., 139 N.W. 386 (Wis. 1913)Google Scholar, followed in Restatement (Second) of Torts, sec. 568, illus. 1 (1977).Google Scholar

25 For my discussion of this theme, see Epstein, Richard A., Principles for a Free Society: Reconciling Individual Liberty with the Common Good (Reading, MA: Perseus Books, 1998), chap. 3.Google Scholar

26 See, e.g., Carr v. Hood, 170 Eng. Rep. 981 (K.B. 1808).Google Scholar

27 The classical definition of defamation is that of Baron Parke, which refers to a statement that “is calculated to injure the reputation of another, by exposing him to hatred, contempt, or ridicule.” Parmiter v. Coupland, 151 Eng. Rep. 340, 342 (Ex. 1840).Google Scholar For the various limitations on the definition, see Epstein, , Torts, 478–87.Google Scholar

28 Virgil v. Time, Inc., 527 F.2d 1122, 1128–29 (9th Cir. 1975).Google Scholar Once again, we see the same pattern that we saw in the nuisance cases. When the Supreme Court cares about constitutional doctrine, it migrates back to the common law baselines. In Virgil, the court announced that the provisions contained in the Restatement (Second) of Torts, secs. 652A–E, set out, albeit unintentionally, the First Amendment standard for the newsworthiness privilege. For an early recognition of the privilege, see Sidis v. F-R Publishing Co., 113 F.2d 806 (2d Cir. 1940)Google Scholar; adopted in Restatement (Second) of Torts, sec. 652D, illus. 19.

29 Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975)Google Scholar, accepted in Restatement (Second) of Torts, sec. 652D, cmt. d and illus. 12.

30 Sipple v. Chronicle Publishing Co., 201 Cal. Rptr. 665 (Cal. App. 1984).Google Scholar

31 For one early attempt at establishing liability for harmful but truthful disclosures, see Melvin v. Reid, 297 P. 91, 93 (Cal. App. 1931)Google Scholar (explicitly recognizing “the right to pursue and obtain safety and happiness without improper infringements thereon by others”).

32 Dietemann v. Time, Inc., 449 F.2d 245 (9th Cir. 1971).Google Scholar

33 Note, in dealing with this issue, I take the position that there is no class of private property that “is affected with the public interest” just because customers have been allowed to enter as a matter of course. That implied license is, of course, valid until countermanded. But it is not as though it converts the land to some form of quasi-public property. In order for that to take place, some form of a dedication is generally required, which might apply to a public way, but not to a closed office. Obviously, the entire civil rights movement is in tension with this view, at least where the denial to entry is done on grounds of race, sex, or national origin. See The Civil Rights Act of 1964, 42 U.S.C. secs. 2003 et seq.

34 See, e.g., Phillips v. Homfay, 24 Ch. D. 439 (1883).Google Scholar

35 Howell v. New York Post, 612 N.E.2d 699 (N.Y. 1993).Google Scholar

36 Desnick Eyes Serv. v. ABC, 44 F.3d 1345 (7th Cir. 1995).Google Scholar

37 The key case on this point is still New York Times v. Sullivan, 376 U.S. 254 (1964).Google Scholar

38 See, e.g., Texas Gulf Sulphur Co. v. J. R. Simplot Co., 418 F.2d 793 (1969).Google Scholar

39 Ruckelshaus v. Monsanto, Inc., 467 U.S. 986, 1001 (1984)Google Scholar, which relied on the definition of trade secrets in Restatement of Torts, sec. 757. The case offers (in addition to the definition of nuisance, and the scope of the privacy interest) a third instance where Restatement definitions end up doing double duty as constitutional norms.

40 For a longer discussion, see Epstein, , Principles for a Free Society, chap. 10.Google Scholar

41 Billings, Paul R., Kohn, Mel A., de Cuevas, Margaret, and Beckwith, Jonathan, “Discrimination as a Consequence of Genetic Testing,” American Journal of Human Genetics 50, no. 3 (03 1992): 476–82.Google ScholarPubMed See also Alper, Joseph S. and Natowicz, Marvin R., “Genetic Discrimination and the Law,” American Journal of Human Genetics 50, no. 3 (03 1992): 465–75.Google Scholar

42 I discuss the question at far greater length in Epstein, Richard A., Mortal Peril: Our Inalienable Right to Health Care? (Reading, MA: Addison-Wesley, 1997), chaps. 6 and 7.Google Scholar See also Epstein, Richard A., “The Legal Regulation of Genetic Discrimination: Old Responses to New Technology,” Boston University Law Review 74, no. 1 (01 1994): 123.Google ScholarPubMed

43 See, e.g., Me. Rev. Stat. Ann. tit. 24, sec. 5011 (1)(A)(West 1997): “Rates for policies subject to this subsection may not vary based on age, gender, health status, claims experience, policy duration, industry or occupation.”

44 For recommendations on breast cancer, see, e.g., Koenig, Barbara A. et al. , “Genetic Testing for BRCA1 and BRCA2: Recommendations of the Stanford Program in Genomics, Ethics, and Society,” Journal of Women's Health 7, no. 5 (06 1998): 531–45.CrossRefGoogle ScholarPubMed “Privacy legislation must be strengthened as one part of a strategy to limit genetic discrimination. Employers and insurers should be prevented from making decisions based on genetic information by putting health professionals and others who have access to the information under an obligation not to disclose it.” Ibid., 532.

The recommendation comes after this description of the sad state of medical services: “In addition, genetic services are delivered within a social context described by King as shaped by ‘a paternalistic medical establishment, an opportunistic biotechnology industry and a malevolent insurance industry.’” It is nice to be among friends. The reality? One recent New York Times story on the managed care syndrome notes that the industry's efforts at cost-containment have lagged because of its utter inability to enforce any of the planned restrictions on coverage. See Weinstein, Michael M., “Managed Care's Other Problem: It's Not What You Think,” New York Times, 01 28, 1999, sec. 4, p. 1Google Scholar: “Rarely a week goes by without a health maintenance organization getting hammered in the press or in court for denying payment for the care of a gravely ill patient.” But the diagnosis of the key problem? “That problem is too many medical treatments rather than too few.”

45 Lindenau v. Desborough, 108 Eng. Rep. 1160 (C.P. 1828).Google Scholar See also Lord Mansfield's earlier opinion in Carter v. Boehm, 97 Eng. Rep. 1162 (1766).Google Scholar For a statutory recognition of the duty, see Marine Insurance Act, 1906, 6 Ed. 7, chap. 41, sec. 18(1).