The Literary Language of Privacy—how Judges' Use of Literature Reveals Images of Privacy in the Law

• Publication year: 2023
• Citation: Vol. 39 No. 3

The Literary Language of Privacy—How Judges' Use of Literature Reveals Images of Privacy in the Law

Elizabeth De Armond

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THE LITERARY LANGUAGE OF PRIVACY—HOW JUDGES' USE OF LITERATURE REVEALS IMAGES OF PRIVACY IN THE LAW

Elizabeth De Armond^*

ABSTRACT

George Orwell's Nineteen Eighty-Four. When we think of literary works and privacy, that is the first book that comes to mind, and the same is true for judges penning privacy law opinions too. Although the novel is notable for expressing fears of authoritarian overreach, other literary works offer judges a tool for describing the plights of parties before them—parties who seek to vindicate breaches of privacy in many different forms. Nineteen Eighty-Four particularly suits cases that challenge government surveillance or non-governmental wiretapping. References to Franz Kafka and Joseph Heller illuminate other privacy harms, such as unease with governmental collection, manipulation, and release of data. Nathaniel Hawthorne's The Scarlet Letter comments on punishment via exposure of stigmatizing information. William Shakespeare, centuries ago, spoke knowingly of the peculiar pain arising from injury to one's reputation.

Judges have referenced all these works in majority and dissenting opinions to help make concrete the often amorphous, but still very real, damage that privacy breaches can cause. This Article organizes many of these opinions according to the type of privacy invasion and provides examples of how judges' language can help us show why the

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law provides remedies, however imperfect and unevenly provided, for privacy harms.

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CONTENTS

Introduction.................................................................................648

I. Searches and Surveillance...................................................649

A. Orwell's Nineteen Eighty-Four: "Big Brother Is Watching You"—Big Brother and Winston Smith.............................649
B. Kafka's The Trial: Josef K. and Bewilderment.................656

II. Government Collection, Manipulation, and Release of Data........................................................................................660

A. Kafka's The Trial and Other Works—Josef K., Informants, and Bewilderment..............................................................662
B. Orwell's Nineteen Eighty-Four: Winston, Big Brother, and the Vulnerability of the Surveilled.....................................665
C. Hawthorne's The Scarlet Letter: Hester Prynne and Community Shaming..........................................................666
D. Shakespeare.......................................................................671

1. Othello: Iago and Reputation's Value.........................672
2. Richard II: Thomas Mowbray's Defense of Reputation ......................................................................................674

E. Heller's Catch-22: Yossarian's Frustration......................676

III. Intellectual Privacy and Forced Speech—Orwell's Nineteen Eighty-Four: Winston, Oceania and "Thought crime"....................................................................678

IV. Punishment and the Fifth and Eighth Amendments—Hawthorne's The Scarlet Letter: Hester Prynne and Extreme Punishments...........................................................679

V. Torts And Wiretapping.........................................................682

A. Invasion and Surveillance.................................................683

1. Orwell's Nineteen Eighty-Four: The Omniscient Big Brother.........................................................................683
2. Shakespeare's Hamlet: Polonius's Eavesdropping.....684

B. Reputation and Appropriation...........................................685

1. Shakespeare.................................................................686

i. Othello: Iago's Reputation.....................................686
ii. Richard II: Thomas Mowbray's Defense of Reputation..............................................................690

2. Hawthorne's The Scarlet Letter: Hester's Shame.......692

Conclusion....................................................................................693

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Introduction

Literary works sometimes appear in opinions related to privacy cases; judges use them to help portray the nature of the privacy interest involved or the harm someone may have suffered from a breach of privacy.¹ George Orwell's Nineteen Eighty-Four is most popular among these works.² It is a suitable resource with its vivid and hair-raising imagery of "Big Brother" looking over everyone's shoulder and reading everyone's thoughts.³ But privacy cases, dealing as they do with the abstract world of personhood, broken boundaries, and betrayal, have drawn on other works of literature too, and these—along with Nineteen Eighty-Four—are the focus of this Article. Works cited by judges include those by Franz Kafka, William Shakespeare, Nathaniel Hawthorne, and others.⁴

A wide variety of privacy actions have pulled judges toward their bookcases. Some of the most common privacy actions involve searches under the Fourth Amendment;⁵ defamation;⁶ intrusion upon seclusion;⁷ information privacy protected by the Fourteenth Amendment;⁸ and state constitutional actions.⁹ Examining the cases in which judges turn to literature to explain and illuminate their reasoning reveals the sorts of images that engage judges, which in turn can aid in thinking about and successfully advocating for privacy.

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This Article loosely groups privacy cases that cite common works of literature according to the type of privacy invasion at issue: government surveillance and searches; government collection and disclosure of personal data; intrusions on autonomy and liberty; invasions of intellectual privacy; public punishment; and tortious interferences with privacy. Finally, the Article summarizes some possible conclusions about how courts visualize the privacy interests involved.

I. Searches and Surveillance

Government surveillance, including by wiretap or camera, can inflict distressing feelings of nakedness, of loss of boundaries around oneself, and of being watched by those unseen.¹⁰ It can also inflict overwhelming fear—fear of imprisonment, punishment, or loss of all autonomy.¹¹ orwell aptly portrays this fear through Big Brother, so references to Nineteen Eighty-Four occur most commonly in opinions related to these sorts of incursions on privacy. The gloomy world of Kafka's The Trial runs a close second, followed by Hawthorne's The Scarlet Letter.

A. Orwell's Nineteen Eighty-Four: "Big Brother Is Watching You"—Big Brother and Winston Smith

Orwell's Nineteen Eighty-Four is the marquee literary work in privacy law analysis, especially in cases assessing government surveillance or searches. The novel is one of the English language's best known examples of the dystopian genre.¹² The story takes place

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in fictional Oceania, where the Party, led by Big Brother, rules.¹³ The Party observes citizens through ever-present telescreens and monitors citizens' thoughts for "thoughtcrime."¹⁴ The main character, Winston Smith, is a disillusioned Party member who joins what he believes to be a rebel group seeking to overthrow the Party.¹⁵ Alas, poor Winston trusts unwisely and learns that the fellow rebel he confided in was actually a Party member who later tortures him with rats as punishment.¹⁶ In the end, the Party breaks Winston's spirit and will to rebel, and he becomes a faithful Party member.¹⁷

Orwell presents Big Brother as omniscient, seeing everything and everyone, including their thoughts—a terrifying world.¹⁸ The omnipresent telescreens have the text "Big Brother Is Watching You,"¹⁹ an image that judges often mention when referring to the novel, especially in cases examining government surveillance.²⁰

The Party has the power to use surveillance to read people's hopes and desires and sends troops into their homes to arrest them for "thoughtcrime."²¹ In addition to the telescreens, the Party exerts control over its citizens' thoughts by using spies to constantly monitor citizens, including using children to tattle on their parents.²² The novel depicts the complete erasure of human feelings and individual personhood.²³ Orwell identifies the "place where there is no darkness,"²⁴ but this place with no darkness of which Winston dreams turns out to be a bare, brightly lit cell where there is no place to hide and darkness never falls rather than a utopian escape.²⁵

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In a typical legal opinion citing Nineteen Eighty-Four, a person has accused the government of some type of surveillance. Video surveillance, in particular, inspires references. For instance, in dissenting from the majority opinion in Florida v. Riley, Justice Brennan drew upon the novel to warn of the dangers of government surveillance from the skies.²⁶ In Riley, a homeowner challenged surveillance by a helicopter that flew over his home, and the Supreme Court held that such surveillance was not a Fourth Amendment search.²⁷ In dissent, Justice Brennan emphasized the resemblance to Big Brother's all-seeing presence:

The Fourth Amendment demands that we temper our efforts to apprehend criminals with a concern for the impact on our fundamental liberties of the methods we use. I hope it will be a matter of concern to my colleagues that the police surveillance methods they would sanction were among those described 40 years ago in George Orwell's dread vision of life in the 1980's:
"The black-mustachio'd face gazed down from every commanding corner. There was one on the house front immediately opposite. Big Brother Is Watching You, the caption said. . . . In the far distance a helicopter skimmed down between the roofs, hovered for an instant like a bluebottle, and darted away again with a curving flight. It was the Police Patrol, snooping into people's windows." Who can read this passage without a shudder, and without the

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