How Norms, Not Laws, Can Regulate Technology

The first serious discussion of a legal right to privacy in the United States didn’t come until the year 1890 and that was because of the invention of a technology.

That technology was the Kodak camera.

Before, cameras were big and they sat in studios and you knew when you’re picture was being taken. Suddenly people could take this camera out in the street, take a picture of you anywhere and that picture could appear before the whole world in the penny press. It freaked people out. 

They didn’t know what to do about it and so Louise Brandeis and Samuel Warren wrote a now famous paper that was the fundamental intellectual base of looking for a legal right to privacy in the US and what was really happening there was there was a gap between technology and society’s norms. 

A new technology came along.  It caused a change.  It was disrupting and unsettling.  We didn’t know what to do about it and so we feared it and there were efforts to stop it. 

There were attempts to create laws in New York State for example that wouldn’t allow your picture to be taken unless you had explicit permission, which would stop people from taking pictures on the street for example in public.  There were a lot of stories in The Times about fiendish Kodakers lying in wait, about a young Vanderbilt who horsewhipped a Kodaker.  President Roosevelt outlawed Kodaking in Washington parks.

What happened here, obviously, is that our norms caught up with this technology and we figured it out. We now know you’re not going to go into the locker room at the gym and take a picture, but you are going to be allowed to take a picture on the street. 

We have agreed upon norms.

Jeff Jarvis will be appearing at Techweek Chicago on June 27. Find out more here.