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“It is essential for human flourishing that we conduct substantial parts of our lives unobserved.”
— Tiffany Jenkins
Long before the advent of digital encryption, cloud servers, or the surveillance state, the earliest piece of privacy technology was remarkably mundane: the hallway.
The architectural evolution of private space began in earnest in 1716, when the Duchess of Marlborough questioned the architect designing Blenheim Palace over his blueprints, which featured an abundance of long, narrow rooms. The architect explained that these spaces were meant to serve as passages between rooms rather than destinations in themselves. Another contemporary builder articulated the radical purpose of this new design principle, noting that every room in the house was now private, meaning there was a way to enter each space without having to pass through any other room.
In essence, hallways created privacy. As cultural historian Tiffany Jenkins writes in Strangers and Intimates: The Rise and Fall of Private Life, it took a full century for this architectural feature to become commonplace, but once it did, the Victorians embraced it wholeheartedly.
Before the widespread adoption of the hallway, Jenkins explains, there was no strictly separate private sphere and no aspect of human life where outsiders could not legitimately intrude. The outside world expected to pry into anyone’s business, and curiosity and nosiness were practically mandated social duties.
Counterintuitively, that social paradigm began to shift with the Puritans. Their insistence that matters of religion and conscience represented private freedoms established the very first boundaries that the sovereign state could not cross. Once established, this zone of non-interference steadily expanded into the Victorian definition of privacy, which eventually came to throw a protective shield over bedrooms, personal communications, and economic commerce.
This burgeoning zone of privacy faced its tests early on. In 1844, the British government found itself embroiled in a major scandal when it was caught opening the letters of Italian political exile Giuseppe Mazzini to snoop on his correspondence with revolutionary forces across Europe.
Mazzini exposed the clandestine surveillance operation by having his friends mail him letters containing grains of sand and poppy seeds. When the letters arrived otherwise empty—the tiny grains having fallen out through the cracks during the government’s clumsy inspection—the blatant breach of privacy sparked fierce national outrage.
Prominent cultural figures did not mince words. Thomas Carlyle famously condemned the opening of a man’s letters as a “scoundrelism” completely equivalent to picking his pocket. Meanwhile, radical Member of Parliament Thomas Duncombe argued that the practice was actively “subversive of the public confidence essential to a commercial country.”
Perhaps most tellingly, the plots of two major Charles Dickens novels of the era—Bleak House and Little Dorrit—revolved heavily around stolen letters that threatened to expose sensitive family connections and private economic dealings. All of these cultural markers confirmed, as Jenkins notes, that a profound revolution in the value and esteem of privacy had taken place.
Yet, while the Victorians were the first to embrace this cultural ideal, the United States was the first to attempt to write it into law—albeit with considerable difficulty.
In 1890, lawyers Samuel Warren and Louis Brandeis published The Right to Privacy, a foundational legal article arguing for a fundamental “right to be let alone.” The piece was written largely in response to the growing privacy intrusions ushered in by sensationalist newspapers and the invention of early photography.
Jenkins describes this publication as a seminal moment in the history of privacy. However, in the course of researching their landmark article, the two lawyers observed a surprising and glaring constitutional gap: there was no explicit mention of privacy anywhere in the United States Constitution, nor even within its amendments.
Despite the profound influence of Warren and Brandeis’s arguments, this constitutional silence on privacy persisted for decades.
In 1928, the United States Supreme Court upheld the federal government’s use of warrantless wiretaps in the landmark case Olmstead v. United States. The court ruled that wiretapping did not violate the Fourth Amendment because the surveillance did not involve a physical trespass onto the defendant’s property.
Writing on behalf of four dissenting justices, a now-prescient Justice Louis Brandeis issued a stark warning. He wrote that the progress of science in furnishing the government with tools of espionage was unlikely to stop with wiretapping. He theorized that ways might someday be developed by which the government, without ever removing physical papers from secret drawers, could reproduce them in a court of law and expose the most intimate occurrences of the home to a jury.
Of course, precisely that kind of technological surveillance has come to pass. Less prophetically, Brandeis also warned that advances in psychic and related sciences might eventually bring means of exploring unexpressed human beliefs, thoughts, and emotions.
It was not until the 1965 Supreme Court ruling in Griswold v. Connecticut that the high court finally asserted a constitutional right to privacy. Even then, achieving that legal recognition required a remarkably creative logical framework.
To rule that privacy is a constitutional right, Jenkins writes, Justice William O. Douglas argued that the specific guarantees found within the Bill of Rights possess “penumbras”—shadows cast by those explicit rights—which, when drawn together, add up to a de facto right to privacy. To many legal observers, penumbras, a concept that sounds vastly more astronomical than legal, seemed like a precarious foundation upon which to build the right to privacy.
The legal footing grew slightly more concrete in 1967 when the Supreme Court ruled in Katz v. United States that the Fourth Amendment protected people rather than just physical places.
Privacy advocates widely celebrated the decision because it successfully decoupled privacy rights from property rights, ensuring that Fourth Amendment protections applied in public settings such as the telephone booth where Charles Katz had been illegally transmitting college basketball bets.
In hindsight, however, those celebrations look somewhat misplaced. The court ultimately only required that the government obtain a warrant for its eavesdropping activities. The ruling actually normalized wiretapping surveillance as a routine tool of law and order, as Jenkins points out.
For modern privacy advocates, things have arguably only gone downhill since then. Through a subsequent series of legal rulings, the Supreme Court narrowed the definition of prohibited searches while simultaneously broadening the scope of permissible searches and warrants. As a direct result, constitutional protections for privacy have been progressively undermined.
To illustrate the sheer extent of this erosion, Jenkins cites the high-profile case of Monica Lewinsky, who was forced to surrender her private correspondence, personal gifts, and clothing simply because her infamous correspondent was accused of a crime, and not even a particularly severe one.
With the government granting itself that sweeping level of subpoena power, privacy is no longer a locked door at the end of a private hallway; instead, it has been reduced to a mere paperwork requirement.
Jenkins laments this trajectory. She concludes that it remains essential for individuals to have a private space shielded from corporate, state, and public scrutiny—a place where human beings can simply be alone.
However, her thorough history of privacy demonstrates that, contrary to popular belief, having a private life is neither natural nor universal. If society truly wants to preserve privacy, it will have to build it anew.
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