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21 Nw. J. Tech. & Intell. Prop. 1 (2023-2024)

handle is hein.journals/nwteintp21 and id is 1 raw text is: Copyright 2023 by Northwestern University Pritzker School of Law Volume 21, Number 1 (2023) Northwestern Journal of Technology and Intellectual Property THE RIGHT TO DATA PRIVACY: REVISITING WARREN & BRANDEIS Anthony G. Vol/ni* ABSTRACT-In their famous 1890 article The Right to Privacy,1 Samuel Warren and Louis Brandeis found privacy as an implicit right within existing law. Regarded as perhaps the most influential legal essay of all time,2 it offers concepts that ring as true today as they did in 1890. In defining privacy as an important legal principle implicit in the law, they focused on information privacy, such as public disclosure of personal information, rather than decisional privacy. Analyzing the 1890 article is an ideal starting point to assess the origins of privacy law and to understand privacy issues from a simpler time in terms of law and technology. Its concepts thus provide an easily understandable frame of reference before diving into more challenging modern issues and assessing a path forward. Accordingly, this article compares each key principle from 1890 and explores privacy issues that remain similar versus privacy issues that seem new based on particular advances in technology. The key similarity between 1890 and today is that problems of information dissemination present similar issues, albeit on a larger scale. Some key differences between 1890 and today, however, are that computer technologies now allow for massive data collection, massive data retention and increasingly aggressive data analysis that can be used to abuse privacy even with ostensibly public data. Warren and Brandeis taught us that new technologies continually present new privacy issues; so as new technologies are evolving today, thought must still be given to how the law might flexibly adapt to new and unforeseen changes in tech. Their article * Professor of Legal Practice at DePaul University College of Law, Registered Patent Attorney, M.S. Cybersecurity (Networking & Infrastructure Conc.), (Certified Information Privacy Professional/United States (CIPP/US), CIPP/Europe (CIPP/E), Cybersecurity Fundamentals Certificate (CSXF). With many thanks to Professor Charlotte Tschider, Colin Black, Esq., Brett Davinger, Esq. and Matthew Messina (3L) for helpful research and insights. 1 Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 HARV. L. REV. 193 (1890). 2 Jeffrey Bellin, Pure Privacy, 116 NW. U. L. REV. 463, 469 (2021) (citing Harry Kalven Jr., Privacy in Tort Law-Were Warren and Brandeis Wrong?, 31 LAW & CONTEMP. PROBS. 326, 327 (1966)). 1

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