Introduction to Privacy Itself as a Concept

The word “privacy” has many different meanings. It has been defined, for example, as “[t]he quality, state, or condition of being free from public attention to intrusion into or interference with one’s acts or decisions.”¹ As far back as 1890, future Supreme Court Justice Louis D. Brandeis put it more succinctly: he said that privacy is, simply, the “right to be let alone.”² Privacy can also be thought of in terms of the interests that it seeks to protect, including the individual interest in avoiding public disclosure of private matters and the interest in being afforded the ability to independently make certain kinds of decisions.³

The alternative ways in which privacy can be defined are important for understanding how the concept of privacy is used throughout the legal and regulatory landscape. The protection of individual privacy is infused throughout American law; it is incorporated into a broad range of statutes and regulations at both the state and federal levels. The State of California has even incorporated the protection of individual privacy into its state constitution. Article 1, Section 1 of the California Constitution reads: “All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.”⁴

In the United States, legal protections over private information are commonly referred to as “data privacy” or “information privacy” laws. In other countries, and in particular throughout the European Union, legal protections are commonly referred to as “data protection” laws.

In order to understand privacy—and the various ways in which it is used in the law—it can be helpful to think in terms of four broad categories: (1) information privacy; (2) bodily privacy; (3) communication privacy; and (4) territorial privacy.⁵

Information Privacy refers to the collection and handling of personal information.⁶

Bodily Privacy refers to the protection of the physical body from intrusion.⁷

Communication Privacy includes the protection of written, oral, and electronic correspondence.⁸

And, finally, Territorial Privacy refers to the protection of one’s environment, such as one’s home or place of employment.⁹

To some extent, each of these interests is protected under law. For example, the Employee Polygraph Protection Act of 1988 (“EPPA”)¹⁰ prohibits employers from forcing employees to take a lie detector test in most cases. This can be thought of as protecting an employee’s bodily privacy. The Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) protects information privacy by placing restrictions on the disclosure of “protected health information.”¹¹ Both of these statutes, and many others, are discussed later in this study guide. For now, however, it is important to understand that the concept of privacy has many different components and many different meanings.