Although publication of the legal theory by Brandeis and Warren caused a stir in legal community, at first the courts did not accept that privacy rights existed. The New York Court of Appeals decided that no enforceable privacy rights remedy existed in common law in the case of Roberson v. Rochester Folding Box Company in 1902. (171 N.Y. 538) The court found that the theory was too broad to be enforced and suggested that the legislature could enact statutes so that "the rule would be applicable only to cases provided for by the statute." (171 N.Y. 538) In response, the New York legislative body enacted Section 50 and 51 of New York Civil Rights Law recognizing the right of privacy. (Freedman, p. 23) In 1905, the appellate court in Georgia recognized for the first time the existence of the right of privacy without a statute in the case of Pavesich v. New England Life Insurance Co. (50 SE 68) Other courts from other states followed the example of recognizing the right of privacy from this case. (Freedman, p. 5) The right of privacy gained ground slowly both by enactment of statutes and by judicial decisions setting legal precedents. (Rubin, p.19) By 1930's, the First Restatement of Torts stated that "a person who reasonably and seriously interferes with another's interest in not having his affairs known to others or his likeness exhibited to the public is liable to the other." (Freedman, p. 5)

Even as the right to privacy began to take root, in 1928 the Supreme Court had to decide what role privacy must play in the light of advancing technology. Olmstead v. United States raised the issue of legality of wiretapping by the United states government. The Court decided that the Fourth Amendment was not violated when securing evidence by wiretapping since "the evidence was secured by the use of the sense of hearing only." (277 US 438) Again, this decision compelled the legislative body to act. This time the Congress enacted the Communications Act of 1934 in which one of the provisions banned all wiretapping. (Rubin, p. 21) However, the Court's opinion on right to privacy concerning wiretapping did not remain permanent. Almost 40 years later in 1967, the Supreme Court overruled Olmstead v. United States in Katz v. United States. According to the new interpretation of the Fourth Amendment, "the Fourth Amendment protects people, not places...what [a person] seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected." (389 US 347) The Congress reacted to the Court's decision by enacting the Omnibus Crime Control and Safe Streets Act of 1968 whereby wiretapping can legally occur provided certain requirements are met. One other important provision of this act that will prove relevant in the Clipper Chip controversy today required that assistance should be given by the communication service providers when law enforcement agents need assistance executing warrants. (Rotenberg, p. 67) Because advancing technology outstripped the limits of the law, the Electronic Communications Privacy Act of 1986 was enacted to include wireless electronic devices. (Rubin, p. 23)

History displays the propensity of the court to decide the role of the right to privacy before any legislative action took place. So it is not surprising that the constitutionality of the right to privacy also rose from a court case. Griswold v. Connecticut, decided in 1965, raised the status of the right to privacy from the tort law to an independent constitutional privacy right. According to the majority decision, the Constitution provided for the right to privacy by "penumbras." (381 US 479) With the controversial decision in Roe v. Wade, the Court expanded further the scope of privacy rights. (410 US 113 1973) However, the constitutionality of the right to privacy remains limited to only the questions of marital relationships and the like; no further cases rose to apply the notion to the communications and various types of records. (Rubin, p. 27)

The major burden of shaping the right of privacy in America fell on the Court's shoulders as the Court often took the first step in determining the status and the enforceability of the right of privacy. Indeed, William L. Prosser identified the developments in four distinct torts in the case law relating to the right of privacy: public disclosure, intrusion, false light, and appropriation. (Bier, p. 93) Even though most legislative actions for the right of privacy took place in reaction to the Court's decisions, legislation has played a small part in molding privacy rights, particularly as modern society became more technologically oriented. Two major federal statutes, the Privacy Act of 1974 and the Freedom of Information Act of 1966, exemplified the effect of legislation on the American public's right of privacy.

This is a general sketch of the history of the right to privacy. From the beginning, ambiguity clouded the rise of the privacy right; in response to the controversy provoked by the court's first major decision that the privacy rights do not exist, the legislative body took actions where the court would not. Thus the recognition of the right to privacy came, not from the courts, but from the American public's reaction to the knowledge that privacy may not be protected. From this inauspicious beginning, the right to privacy grew haphazardly depending on the cases rising in the court. In cases where the public intensely disagreed or disapproved the decisions of the court, the legislative body would take actions. Incredibly, such random development of the right to privacy did not extinguish the right to privacy in spite of the fact that the right depended precariously on retroactive reactions rather than a progressive outlook.

Unlike other constitutional rights where the courts interpreted explicitly defined rights, the right to privacy struggled to attain the status of a constitutional right because the courts and legislature defined and shaped the right to privacy according to the public's reactions to changes in the society. As can be seen through the rise of cases from Roberson v. Rochester Folding Box Company to Roe v. Wade, the court grappled with the problem of being in the position of defining what has been an implicit right explicitly. The fact that legislative actions have been reactive instead of progressive compounded the difficulty of anchoring any lucid privacy rights firmly into our society. Detailed examination of some of the privacy invasion issues in rapidly changing telecommunication technology will demonstrate that the right to privacy cannot continue to be defined by capricious approach.