HOW far does consumer privacy protection lag behind data-collection systems, those advanced technologies that media companies use to gather, share and profit from our personal information?
Too far, according to two privacy advocates.
“Solitude and privacy have become more essential to the individual; but modern enterprise and invention have, through invasions upon his privacy, subjected him to mental pain and distress,” the privacy experts wrote in theHarvard Law Review. “In this, as in other branches of commerce, the supply creates demand,” they added; and that demand, they noted, ends up broadcasting our private matters in public spheres.
The review article, written in 1890 by the young lawyers Samuel D. Warren and Louis D. Brandeis, concerned the spread of that era’s viral technology: snapshot photography. Newspaper photographers, the lawyers wrote, were feeding an “unseemly gossip” industry by taking and publishing candid shots of people without their consent.
Before the advent of the camera, explains Jon Leibowitz, the chairman of the Federal Trade Commission, newspaper photographers would have had difficulty carting heavy daguerreotype equipment and using it to peer over people’s back garden fences.
“But once you went to a real camera,” Mr. Leibowitz said in an interview last week, “that could easily be done.”
As the adage goes: Everything old is new again.
On the one hand, consumers often benefit from newfangled gizmos — be they cameras, tape recorders or cellphones. On the other hand, the widespread adoption of technology has often left legislators and regulators racing to play catch up.
The F.T.C., for instance, just published a report in which agency experts concluded that data-collection techniques on the Web had outdistanced user privacy control. So it was only natural that Mr. Leibowitz looked to tradition and invoked the 19th-century law review article, which essentially laid the legal foundations for protecting Americans’ privacy rights.