This is a clip from The Breakdown newsletter. To read the full editions, Subscribe.
“It is essential to human flourishing that we spend large portions of our lives unnoticed.”
-Tiffany Jenkins
Passages were the first privacy technology.
In 1716, the Duchess of Marlborough questioned the architect who designed Blenheim Palace because of all the long, narrow rooms he had planned. The architect had to explain that this was “nothing more than a corridor.” between Rooms.
Another contemporary builder explained the purpose of this revolutionary new design: “All the rooms in this house are private; that is, there is a way into each one without passing through any other room.”
In other words, the corridors created privacy.
“It took a century for this architectural feature to become popular,” Tiffany Jenkins wrote. Strangers and close ones; The rise and fall of private life. “But once that happened, the Victorians embraced it wholeheartedly.”
Before the advent of corridors, “there was no completely separate private sphere, no aspect of life into which others could not legitimately interfere,” she explains. “The outside world could intrude into anyone’s business, and they were expected to do so. Curiosity and inquisitiveness were a given.”
Counterintuitively, this began to change with the Puritans, whose insistence that matters of religion and conscience were private freedoms created the first barrier that the state could not cross.
Once established, this zone of non-interference expanded into the Victorian definition of privacy protecting bedrooms, communications and commerce.
In 1844, the zone of privacy was tested when the British government was caught opening the letters of political exile Giuseppe Mazzini to intrude into his correspondence with Italian revolutionaries.
Mazzini demonstrated surveillance by having his friends mail him grains of sand and poppy seeds. When the letters arrived empty, the pills having fallen out during the government’s clumsy inspection, the invasion of privacy sparked a national outcry.
Thomas Carlyle described opening a man’s letters as a “scoundrel” equivalent to opening his pocket.
Radical MP Thomas Duncombe said the practice “subverts the public confidence essential to a commercial state”.
More telling are the plots of two novels by Charles Dickens – Bleak House and Little Dorrit It revolves around stolen letters that threaten to expose family ties and economic transactions.
All of this confirms, as Tiffany Jenkins says, that “a revolution in the value and respect for privacy has occurred.”
But while the Victorians were the first to embrace this cultural ideal, the United States was the first to codify it into law — sort of.
In 1890, Samuel Warren and Louis Brandeis published their book Right to privacy – A foundational essay defending the “fundamental right to be left alone” written in response to newspaper intrusions into privacy and early photography.
Jenkins wrote that this was a “touching moment” in the history of privacy. But while researching their article, the two lawyers noticed a surprising gap: There is no mention of privacy in the Constitution — not even in the amendments.
Despite the article’s influence, constitutional silence on privacy has persisted for decades.
In 1928, the Supreme Court upheld the government’s use of warrantless eavesdropping Olmstead v. United Stateswhich ruled that the wiretaps did not violate the Fourth Amendment (because there was no physical trespass on the defendant’s property).
Writing on behalf of the four dissenting justices, Justice Brandeis warned that “the progress of science in furnishing the government with means of espionage is not likely to stop at wiretapping. Methods may one day be developed by which the government, without removing papers from secret drawers, can reproduce them in court, and by which they will be able to reveal to the jury the most private events in the house.”
This is exactly what happened, of course.
(Less predictably, Brandeis also warned that “advances in psychological and related sciences may provide means for exploring unexpressed beliefs, thoughts, and emotions.”)
It wasn’t even Griswold v. Connecticut In 1965 the Supreme Court affirmed the constitutional right to privacy. Even then, it took some creative logic.
“In ruling that privacy is a constitutional right, Justice Douglas argued that the guarantees specified in the Bill of Rights contain ‘missing aspects’ that, when taken together, add up to an actual right to privacy,” Jenkins wrote.
Penumbras—a concept that sounds more astronomical than legal—seems like an unstable legal basis for privacy.
In 1967, the right to privacy became clearer when the Supreme Court ruled Katz v. United States The Fourth Amendment protects not only places but also people.
Privacy advocates celebrated this because it separated privacy rights from property rights, ensuring that the Fourth Amendment applied in places like the phone booth where Charles Katz was illegally betting on college basketball.
But in hindsight, the celebrations seem misplaced because the court simply required that the government obtain a warrant for the wiretap.
“The ruling in effect normalized wiretap surveillance as an instrument of law and order,” Jenkins writes.
For privacy advocates, things have gone downhill since then.
“Through a series of rulings, the Supreme Court narrowed the definition of prohibited searches while expanding the scope of permissible searches and warrants. As a result, constitutional protections for privacy were gradually undermined,” Jenkins writes.
To illustrate the extent of the undermining, Jenkins cites the case of Monica Lewinsky, who had to hand over her private correspondence, gifts, and clothes simply because her notorious correspondent was accused of a crime (and not even a major crime).
With the government giving itself this kind of subpoena power, privacy is no longer a locked door at the end of the hall—it’s just a paper requirement.
Jenkins regrets this.
“It is essential to have a private space protected from scrutiny by corporations, the state and the public,” she concluded. “A place where we can be alone.”
But her history of privacy shows that, contrary to popular belief, “it is neither normal nor universal to have a private life.”
So, if we want one, we have to build it.
Get news in your inbox. Explore Blockworks newsletters:
