In recent years, the ever-changing privacy implications of new technology have caused concern among American consumers. A 2019 survey conducted by the Pew Research Center found that while the majority of Americans are concerned about how their data is being used, fewer than 40% say they understand the laws and regulations that protect their data privacy. 

“In reality, we’ve always had a right to privacy,” said Amy Gajda, a professor at Tulane Law School and author of a new book called “Seek and Hide: The Tangled History of the Right to Privacy.” “That right to privacy began at the very beginning of the United States and continues through today with a real vengeance.” 

Click the audio player above to hear Gajda’s conversation with “Marketplace” host Kai Ryssdal. The following is an excerpt from the book. 

It would seem that a pair of tights and a snap camera started it all.

That’s because the scandalous leg gear and the troubling new technology got a mention in the fourth paragraph of an 1890 law review article by attorneys Louis Brandeis and Sam Warren, one that many say marked the start of the legal right to privacy in the United States. The law partners wrote that a theatrical performance that same year had sparked “a somewhat notorious case.”

The story goes that Marion Manola, singer-actress and star of Broadway’s Castles in the Air, wore gray silk tights as a provocative part of her art.[ii] Tights back then set tongues wagging: they had a sensual cling at a time when women wore thick dresses that plunged to the ground and sashayed around there so that no one much knew what shoes looked like either. Tights on a stage actress allowed men to see the curve of her hips to her toes.

Newspaper headlines from Friday, June 13th, 1890, made clear that Manola absolutely, positively refused. New York: SHE WON’T BE TAKEN IN TIGHTS. Chicago: WILL NOT BE PHOTOGRAPHED IN TIGHTS. In Boston, the Globe put it patronizingly: MISS MANOLA IN DISTRESS: WILL RESIGN RATHER THAN BE PHOTOGRAPHED IN HER TIGHTS. Live performance was one thing, but still photography seemed an invasion entirely different.

Then came trouble, just as any careful reader would have expected. Quite literally the next evening, as Manola ran toward the open arms of a costar in the second act, a flash of light and a puff of smoke erupted from the Broadway Theater’s balcony. The manager had placed a snap camera in an upper box! A photographer had captured Manola and the “not too slender, not too plump, graceful, and shapely contents of the darker gray tights”!

News coverage of the outrage appeared at about the speed of the snap flash.  “The million and a half people in New York are not bothering themselves about the silver bill, the federal election law, or the other issues which interest the country at large,” The Atlanta Constitution reported. “The New Yorkers have nothing in view but Miss Manola’s tights, and just at present they are discussing nothing else.”

Women rallied to Manola’s cause, crediting her for standing firm against a clear male desire to exploit a woman’s choice; the “entire sympathy of all of her sex and of the best part of the community” stood with the actress. Some men, on the other hand, struggled to understand why this particular photo was such a big deal. They’d seen Manola’s silky legs before, not only on Broadway but on cabinet cards published when she’d starred in the risqué Boccaccio. Her tunic back then sported a tantalizing fringe that covered her pelvic region just so, with tight light tights doing the rest of the work.

We’ll never know what Manola’s legs looked like during her Castles in the Air performance, however. A judge immediately sided with the actress, her sex, and the community’s best and ordered that the manager never, ever develop the photo, let alone publish it. And the story might have ended there. 

But the idea of that personal invasion fit perfectly into a narrative building in the mind of attorney Sam Warren back in Boston. Warren saw a different sort of marketing potential in Manola’s legs; the viral tale could help support his call for what he called a newfangled right to privacy. This was solid proof that cameras could (and people would) capture embarrassing images from real life far beyond the woodblock portraits that already tormented the rich and powerful so. Heck, the so-called snap or detective camera was even marketed in such a privacy-invading way: ads promised that it could record the countenance and pose of an unsuspecting victim who would be unaware until it was too late. Mrs. Grover Cleveland, a friend of Warren’s, had it particularly bad: she was HAUNTED BY AMATEURS, headlines read, the dozens of hopeful photographers who waited for a glimpse of the First Lady. Some of their cameras were shaped like purses. Others looked so much like handguns that police could have shot to kill a paparazzo and nobody would have questioned it even for a second. The autograph-seeking fans who similarly frenzied around the French actress Sarah Bernhardt to invade her “privacy” during her U.S. tour in the 1880s? They now had a weapon much mightier than the pen.

Today, the 1890 plea “The Right to Privacy,” written by Warren and his law partner, the future Supreme Court Justice Brandeis, is used to support legal protection not only for the haunted and the hunted, but also to justify protection for everything from sexual intimacies and private scandals to police eavesdropping and computer data. Judges routinely laud the reasoning and quote the language of “The Right to Privacy” in publication cases — as well as in cases involving presidential privilege, civil rights, drug testing, freedom of information, and many others. The 1890 article, those judges say, is seminal and brilliant and famous and historic and a landmark and the foundation for nearly every single privacy-related right that we have in modern times.

But here’s the thing: the right to privacy as a legal concept has always existed in some sense in United States law, ever since the very first long-form newspaper reported titillating scandal in 1690 and was immediately shut down. Warren and Brandeis helped things along to be sure, but privacy, the notion that certain private information is sacred and ought to be protected not just from government but from everyone, cause of action called truthful libel or even ridicule, already had a fairly firm foundation by 1890, and it grew from there. It’s just that nobody’s heard much about it, for reasons that probably have more to do with our focus on press freedom than anything else.

From “Seek and Hide” by Amy Gajda, published by Viking, an imprint of Penguin Publishing Group, a division of Penguin Random House LLC. Copyright © 2022 by Amy Gajda.