wildercb/PrivacyTextBooks1.2 · Datasets at Hugging Face

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awkward 15-year-old kid videotaped himself pretending to be a
character from a Star Wars movie.8 He swung around a golf ball
retriever pretending that it was a light saber and made his own sound
effects. Somebody found the video, digitized it, and posted it on the
Internet. The video created a buzz, and it was downloaded millions of
times around the world. Versions of the video with music and special
effects were soon posted. People made fun of the kid in various
discussions throughout the Internet.
In December 2005, Gary Brolsma placed on the Internet a clip of
himself lip-synching and dancing in a chair to a Romanian pop song.9
He called his performance the “Numa Numa Dance.” The video was
featured on newsgrounds.com, a website devoted to animation and
videos, as well as elsewhere on the Internet. Newsgrounds.com alone
soon received almost two million hits for the “Numa Numa Dance.”
Brolsma appeared on Good Morning America, and CNN and VHI
showed his clip.
Suddenly, however, he decided that he disliked the attention. The
New York Times reported that Brolsma “has now sought refuge from his
fame in his family’s small house on a gritty street in Saddle Brook.”
The article added: “According to his relatives, he mopes around the
house. . . . He is distraught, embarrassed.” His grandmother quoted him
as saying: “I just want this to end.”
Is this simply life in the Internet Age? Does it matter that the parents
of the “Star Wars kid” alleged that the clip of their son was placed
online without his permission? In contrast, Brolsma posted the video of
his dance himself. Is there something that the law can do to protect
people like the Star Wars kid or the Numa Numa dancer? If so, what?
Ultimately, Brolsma moved beyond any anguish at his fame or
notoriety. In September 2006, he released a second video, “New
Numa,” with corporate sponsorship at newnuma.com. The new video
features Brolsma and members of a rock band, the Nowadays, and a
new song. The video was released along with a promotion that allowed
the public to submit their own videos and win a share of $45,000 in
prizes. Brolsma also offered a selection of t-shirts and a coffee mug for
sale to the public. In 2008, he started a website, the Numa Network,
which has grown to include a YouTube channel and a Facebook
presence.
B. INFORMATION PRIVACY LAW: ORIGINS AND TYPES
Information privacy law is a wide-ranging body of law, encompassing
common law, constitutional law, statutory law, and international law. This
section will provide a brief introduction to the various strands of
information privacy law that will be covered throughout this book. It begins
by looking in detail at the most important article ever written about privacy.
1. COMMON LAW
(a) The Warren and Brandeis Article
The common law’s development of tort remedies to protect privacy is
one of the most significant chapters in the history of privacy law. In the late
nineteenth century, considerable concerns about privacy captured the
public’s attention, ultimately resulting in the 1890 publication of Samuel
Warren and Louis Brandeis’s pathbreaking article, The Right to Privacy.10
According to Roscoe Pound, the article did “nothing less than add a chapter
to our law.”11 Harry Kalven even hailed it as the “most influential law
review article of all.”12 The clearest indication of the article’s ongoing
vitality can be found in the Supreme Court’s decision Kyllo v. United States,
533 U.S. 27 (2001). The Brandeis and Warren article is cited by the
majority, those in concurrence, and even those in dissent.
Several developments in the late nineteenth century created a growing
interest in privacy. First, the press became increasingly sensationalistic.
Prior to the Civil War, wide-circulation newspapers were rare. However, the
development of a new form of sensationalistic journalism, known as
“yellow journalism,” made newspapers wildly successful. In 1833,
Benjamin Day began publishing a newspaper called The Sun patterned after
the “penny presses” in London (so named because they sold for a penny).
The Sun contained news of scandals, such as family squabbles, public
drunkenness, and petty crimes. In about four months, the Sun had a
circulation of 4,000, almost the same as the existing New York daily papers.
Just two months later, the Sun was reaching 8,000 in circulation. Other
penny press papers soon followed. In reporting on his travels in America,
Charles Dickens observed that New York newspapers were “pulling off the
roofs of private houses.”13 In his great novel of 1844, The Life and
Adventures of Martin Chuzzlewit, he listed (imaginary) New York
newspapers called The Sewer, The Stabber, The Family Spy, The Private
Listener, The Peeper, The Plunderer, and The Keyhole Reporter.14
Between 1850 and 1890, newspaper circulation increased about 1,000
percent — from 100 papers with 800,000 readers to 900 papers with more
than 8 million readers. Joseph Pulitzer and William Randolph Hearst
became the leading rivals in the newspaper business, each amassing
newspaper empires. Their highly sensationalistic journalism became the
paradigm for yellow journalism.15
Second, technological developments caused great alarm for privacy. In
their article, Warren and Brandeis pointed to the invention of “instantaneous
photography” as a new challenge to privacy. Photography had been around
for many years before Warren and Brandeis penned their article. However,
the equipment was expensive, cumbersome, and complicated to use. In
1884, the Eastman Kodak Company introduced the “snap camera,” a
handheld camera that was small and cheap enough for use by the general
public. The snap camera allowed people to take candid photographs in
public places for the first time. In the late nineteenth century, few daily
newspapers even printed drawings, let alone photographs. Warren and
Brandeis, however, astutely recognized the potential for the new technology
of cameras to be used by the sensationalistic press.
The question of the origin of Warren and Brandeis’s article has led to
considerable debate. Some scholars suggest that Warren and Brandeis were
strongly influenced by an article written in 1890 by E.L. Godkin, a famous
social commentator in his day.16 In the article, Godkin observed:
. . . Privacy is a distinctly modern product, one of the luxuries of civilization, which is not
only unsought for but unknown in primitive or barbarous societies. . . .
The chief enemy of privacy in modern life is that interest in other people and their affairs
known as curiosity, which in the days before newspapers created personal gossip. . . . [A]s
long as gossip was oral, it spread, as regarded any one individual, over a very small area, and

awkward 15-year-old kid videotaped himself pretending to be a

character from a Star Wars movie.8 He swung around a golf ball

retriever pretending that it was a light saber and made his own sound

effects. Somebody found the video, digitized it, and posted it on the

Internet. The video created a buzz, and it was downloaded millions of

times around the world. Versions of the video with music and special

effects were soon posted. People made fun of the kid in various

discussions throughout the Internet.

In December 2005, Gary Brolsma placed on the Internet a clip of

himself lip-synching and dancing in a chair to a Romanian pop song.9

He called his performance the “Numa Numa Dance.” The video was

featured on newsgrounds.com, a website devoted to animation and

videos, as well as elsewhere on the Internet. Newsgrounds.com alone

soon received almost two million hits for the “Numa Numa Dance.”

Brolsma appeared on Good Morning America, and CNN and VHI

showed his clip.

Suddenly, however, he decided that he disliked the attention. The

New York Times reported that Brolsma “has now sought refuge from his

fame in his family’s small house on a gritty street in Saddle Brook.”

The article added: “According to his relatives, he mopes around the

house. . . . He is distraught, embarrassed.” His grandmother quoted him

as saying: “I just want this to end.”

Is this simply life in the Internet Age? Does it matter that the parents

of the “Star Wars kid” alleged that the clip of their son was placed

online without his permission? In contrast, Brolsma posted the video of

his dance himself. Is there something that the law can do to protect

people like the Star Wars kid or the Numa Numa dancer? If so, what?

Ultimately, Brolsma moved beyond any anguish at his fame or

notoriety. In September 2006, he released a second video, “New

Numa,” with corporate sponsorship at newnuma.com. The new video

features Brolsma and members of a rock band, the Nowadays, and a

new song. The video was released along with a promotion that allowed

the public to submit their own videos and win a share of $45,000 in

prizes. Brolsma also offered a selection of t-shirts and a coffee mug for

sale to the public. In 2008, he started a website, the Numa Network,

which has grown to include a YouTube channel and a Facebook

presence.

B. INFORMATION PRIVACY LAW: ORIGINS AND TYPES

Information privacy law is a wide-ranging body of law, encompassing

common law, constitutional law, statutory law, and international law. This

section will provide a brief introduction to the various strands of

information privacy law that will be covered throughout this book. It begins

by looking in detail at the most important article ever written about privacy.

1. COMMON LAW

(a) The Warren and Brandeis Article

The common law’s development of tort remedies to protect privacy is

one of the most significant chapters in the history of privacy law. In the late

nineteenth century, considerable concerns about privacy captured the

public’s attention, ultimately resulting in the 1890 publication of Samuel

Warren and Louis Brandeis’s pathbreaking article, The Right to Privacy.10

According to Roscoe Pound, the article did “nothing less than add a chapter

to our law.”11 Harry Kalven even hailed it as the “most influential law

review article of all.”12 The clearest indication of the article’s ongoing

vitality can be found in the Supreme Court’s decision Kyllo v. United States,

533 U.S. 27 (2001). The Brandeis and Warren article is cited by the

majority, those in concurrence, and even those in dissent.

Several developments in the late nineteenth century created a growing

interest in privacy. First, the press became increasingly sensationalistic.

Prior to the Civil War, wide-circulation newspapers were rare. However, the

development of a new form of sensationalistic journalism, known as

“yellow journalism,” made newspapers wildly successful. In 1833,

Benjamin Day began publishing a newspaper called The Sun patterned after

the “penny presses” in London (so named because they sold for a penny).

The Sun contained news of scandals, such as family squabbles, public

drunkenness, and petty crimes. In about four months, the Sun had a

circulation of 4,000, almost the same as the existing New York daily papers.

Just two months later, the Sun was reaching 8,000 in circulation. Other

penny press papers soon followed. In reporting on his travels in America,

Charles Dickens observed that New York newspapers were “pulling off the

roofs of private houses.”13 In his great novel of 1844, The Life and

Adventures of Martin Chuzzlewit, he listed (imaginary) New York

newspapers called The Sewer, The Stabber, The Family Spy, The Private

Listener, The Peeper, The Plunderer, and The Keyhole Reporter.14

Between 1850 and 1890, newspaper circulation increased about 1,000

percent — from 100 papers with 800,000 readers to 900 papers with more

than 8 million readers. Joseph Pulitzer and William Randolph Hearst

became the leading rivals in the newspaper business, each amassing

newspaper empires. Their highly sensationalistic journalism became the

paradigm for yellow journalism.15

Second, technological developments caused great alarm for privacy. In

their article, Warren and Brandeis pointed to the invention of “instantaneous

photography” as a new challenge to privacy. Photography had been around

for many years before Warren and Brandeis penned their article. However,

the equipment was expensive, cumbersome, and complicated to use. In

1884, the Eastman Kodak Company introduced the “snap camera,” a

handheld camera that was small and cheap enough for use by the general

public. The snap camera allowed people to take candid photographs in

public places for the first time. In the late nineteenth century, few daily

newspapers even printed drawings, let alone photographs. Warren and

Brandeis, however, astutely recognized the potential for the new technology

of cameras to be used by the sensationalistic press.

The question of the origin of Warren and Brandeis’s article has led to

considerable debate. Some scholars suggest that Warren and Brandeis were

strongly influenced by an article written in 1890 by E.L. Godkin, a famous

social commentator in his day.16 In the article, Godkin observed:

. . . Privacy is a distinctly modern product, one of the luxuries of civilization, which is not

only unsought for but unknown in primitive or barbarous societies. . . .

The chief enemy of privacy in modern life is that interest in other people and their affairs

known as curiosity, which in the days before newspapers created personal gossip. . . . [A]s

long as gossip was oral, it spread, as regarded any one individual, over a very small area, and