First Amendment and the Fifth Estate: Regulation of Electronic Mass Media Book

In Privacy, Information, and Technology, Solove and Schwartz provide some information about privacy law and conceptions of privacy. They note that Warren and Brandeis's 1890 "The Right to Privacy" arose because of technological developments that gave alarm about privacy, including "instantaneous photography," such as the development of Kodak's 1884 "snap camera" (11), and the increase in circulation of newspapers (1,000 percent increase between 1850 and 1890). Privacy entered tort law in New York in 1903 (26), and tort laws generally protect the public disclosure of private facts, intrusion upon seclusion, portrayal of a person in "false light," and the appropriation of one's "name or likeness" (31).

Privacy isn't explicitly stated in the constitution, but is read into through the First Amendment (protection of assembly), Third Amendment (privacy of home), Fourth Amendment (safe from search and seizure, which gets read as right to be "let alone"), and the Fifth Amendment (protects against self-incrimination) (33-35).

Solove and Schwartz stress the difference between "the concept of privacy and the right of privacy": "Privacy as a concept involves what privacy entails and how it is to be valued. Privacy as a right involves the extent to which privacy is (and should be) legally protected" (39).