The development of the law of the Internet often parallels legal development in the offline world, with one notable exception: the speed in which it is developed. Just as online deals often are negotiated in “Internet time” — as fast as e-mail can carry legal documents — entire bodies of law can be developed virtually overnight. The challenge for lawyers is to help clients predict and manage the risks in a rapidly changing legal environment.
Privacy law is a case in point. The origin of the concept of privacy as a legal right is credited to a century-old article by Warren and Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193 (1890). Common law development of a privacy right took decades of litigation. Even Brandeis took years to raise the right as a Supreme Court justice, and then only in his famous 1928 dissent in Olmstead v. U.S. [FOOTNOTE 1]It was the 1960s before the right was recognized as a constitutional matter in Griswold v. Connecticut, [FOOTNOTE 2]and the common law right to sue for invasion of privacy continues to be molded by courts today.
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