This book brings fresh perspective and some clear ideas to privacy law and its interaction with freedom of speech. The study is American and particular attention is given to, and use is made of, the writings of Louis Brandeis, author of “The Right to Privacy” (4 (1890) Harvard Law Review 193) and later a Justice of the Supreme Court of the US.

The book has three parts. The first part is an abridged history of US privacy law, with an emphasis on the influence of Mabel Warren, wife of Samuel Warren, who co-authored “The Right to Privacy” with Brandeis. Richards argues, based on Brandeis's personal letters, and as much by what Brandeis did not say in the 40 years following publication of his article, that he was not especially enamoured with privacy, and more acutely felt that “wrongdoing often hides behind privacy, and that publicity can have the power to correct wrongdoing and fraud” (p. 31). In Brandeis's words (quoted on p. 32, and again on p. 106): “Sunlight is said to be the best of disinfectants.” Brandeis advanced new First Amendment jurisprudence in a spate of anti-war speech cases brought in 1919, based in particular on the assertion that free speech protected democracy. Richards identifies four strands in Brandeis's free-speech dissents, and demonstrates that each became a pillar of subsequent First Amendment law, such that “We live under Brandeis's First Amendment” (p. 40). Brandeis was instrumental in creating legally protected privacy, but also in developing free-speech rules, thus setting the scene for the conflict between privacy and free speech. Each element of the Disclosure tort, as detailed by Prosser (publicity, of private facts of no legitimate interest to the public, that are offensive) clashes with free speech, and Brandeis's preference for free speech over privacy meant that he was “willing to contemplate only a tiny set of cases in which the disclosure tort was appropriate” (p. 45). As a mini-study in legal history, this is a fascinating exposition of how Brandeis – so famous for his contribution to privacy law – actually preferred and developed the First Amendment jurisprudence that largely constrains the very privacy law he co-invented.

Richards presents an avenue to resolving privacy and free-speech conflicts, noting that each is focused on different stages of information flow. In general, privacy is first violated with the collection of data; freedom of speech is protected at the dissemination (pp. 56, 69). Richards highlights two limitations on free speech, which each allows some space for privacy. One is the “downstream use problem” (p. 70) – namely that if one person obtains information, say private footage, in violation of privacy, that would not stop a newspaper who buys the tape from that person from disseminating it. The other is “seclusion limitation” (p. 71); wearable technology and drones rather reduce the significance of the “zone of seclusion” on which much privacy law is premised. Richards similarly goes on to discuss data protection, and how it largely evolved from FIPs (Fair Information Practices) in the US in the 1970s and subsequently forming the basis for the OECD Privacy Guidelines and for EU Directive 95/46. He argues that data-protection rules rarely clash with freedom of speech, since “data privacy regulations do not involve the First Amendment at all because they do not restrict the flow of data, much less the freedom of speech” (p. 75). Richards finally pleads that courts avoid describing data as “speech”, basing his appeal on historical precedent of sorts. After the Industrial Revolution, the US Supreme Court repeatedly struck down laws that imposed economic restrictions, based on an “economic libertarianism”, including Lochner (1905), where the court struck down a law that mandated safety provisions for bakers – a very poor outcome in retrospect. Richards continues: “I fear that acceptance of the ‘data is speech’ argument will repeat these errors of the Industrial Age for the Information Age …. We must reject the similar calls of modern advocates for digital Lochner” (pp. 89–90).

Richards has made here some very pertinent observations about the relationship between privacy and free speech, and particularly has pointed to some important distinctions that may be developed to allow privacy more of a role without impinging on free speech. These are useful tools also in jurisdictions in which free speech is protected in human rights and constitutional provisions, but does not have the supremacy among rights granted to it in the US. Richards's call to avoid seeing data as speech is certainly sensible from a privacy standpoint, but seems improbable in the US where Supreme Court jurisprudence has interpreted “speech” very broadly indeed.

Part II of this book presents an alternative approach to privacy as not conflicting with, but supportive of, free speech. “Intellectual privacy” is “a zone of protection that guards our ability to make up our minds freely” (p. 95). Richards notes, somewhat awkwardly, that “a society that cares about the free exchange of ideas should be committed to producing new ideas and not just in shouting the same old ones as loudly as possible” (p. 103). The author suggests that search engines have become “a close approximation to a transcript of the operation of your mind” (p. 121), and consequently a person's intellectual privacy is violated by a revelation of her search history. Probably the most important and novel suggestion in the book ties intellectual privacy with technological innovations, such that “if we want to preserve our ability to think fearlessly … we should embody these technologies with a meaningful measure of intellectual privacy” (p. 122). Richards extends this beyond search to other technologies, such as e-readers, which “create the illusion of intellectual privacy in the physical world, while they threaten intellectual privacy in the digital one” (p. 124). In the third and final section of the book, Richards sets out some principles for protecting intellectual privacy as new technologies abound. Richards suggests that FIPs, rather than invasion of privacy of the publication-of-private-facts variety, are particularly useful (p. 162): “FIPs regulate data in all of its complexity and offer nuanced solutions to nuanced problems.” The book ends with a highly pertinent discussion of free speech and intermediaries of free speech, notably Facebook, Google, and Twitter. Richards stipulates that these companies have started recognising their role and responsibilities in ensuring free speech, but concludes rather obviously that “as the influence of intermediaries over free speech in practice grows, their importance is not going to wane” (p. 174). Richards calls for more attention to information ethics and rightly lauds Privacy by Design (p. 181) – guidelines for integrating privacy into product development, making privacy protection a conscious part of products and services, rather than a patchwork reaction as it usually is – as a way to build information ethics into products and services.

A couple of Richards's ideas are of particular interest and will hopefully spur further discussion and comment. One, mentioned above, is Richards's separation of collection of private information, and dissemination of the same. This is an important distinction in privacy law, and Solove and others (quoted by Richards – the two have co-authored papers) have previously advanced it. Richards uses this distinction to help privacy and free speech coexist. The First Amendment protects dissemination of information, but privacy can be protected where data is collected. Another important suggestion is the use of FIPs to shape privacy and “ethics of information”. The suggestion is not novel; in a sense, all European privacy law is premised first and foremost on FIPs, as noted by Richards. But Richards is essentially suggesting that US law or, more probably, US industry could forge norms of data use that are built on FIPs, and thus enable protection of privacy alongside First Amendment rights. This is to some extent dependent on “data” not coming within the rubric of “free speech” in US law, which is probably wishful thinking at this time.

While the notion of intellectual privacy is useful, this reviewer is rather sceptical of the claims that it is endangered by revelations of search history, reading habits, and so on. On the contrary, there seems to be endless, voluntary sharing of all forms of intellectual activity and creativity, including by prominent privacy advocates. Perhaps the modes of intellectual creativity are changing and, rather than the romantic notion of the creative genius working in seclusion in her study, new notions of intellectual creativity through sharing, collaboration, crowd-sourcing, and wikis are asserting themselves. Consider Kickstarter, the crowd-funding site for creative projects. In 2014, over 22,000 projects were financed on Kickstarter, with over 3 million people participating in the financing, putting intellectually creative projects in the spotlight before they have even been started in earnest. Likewise, Meetup brings over half a million groups together physically, every month, of which – based on this reviewer's anecdotal experience – a large proportion promote various forms of intellectual creativity. So, although Richards's basic assertions may be right, this reviewer sees considerable indications to the contrary.

Another of the central arguments of the book needs additional development for this reviewer to be persuaded. Richards argues that “intellectual surveillance deprives people of the privacy they need to make up their minds autonomously” (pp. 106–07). But Richards goes on to assert: “… my argument … depends upon … the surveillance causing a disruption in their intellectual activities” (p. 106). This makes the argument circular: surveillance that is by definition disruptive is clearly going to disrupt intellectual activities. Setting aside the circularity, there is of course a spectrum of disruption of free thought and free speech by various surveillance technologies; some will be more disruptive, some will be less so. The scope and form of disruption need to be weighed against the facilitation and encouragement of free speech and free thought enabled by the same technologies. This nuance is missing from Richards's analysis, and perhaps he or others will further explore and test his hypothesis. Moreover, is it true that, “if we want to preserve our ability to think fearlessly” (p. 122), we need more privacy-protecting technologies? Anecdotally, real-world experience provides good grounds for the converse conclusion, as alluded to by the author (p. 175). Internet technologies and intermediaries such as Facebook have dramatically improved freedom of speech – a point not lost on autocratic governments around the globe, and famous instances abound from the so-called Arab Spring of 2011. For all the risks to intellectual privacy highlighted in this book, from Amazon knowing what we read, to Google knowing what we search for, and Facebook knowing who we are in touch with, the chilling of our intellectual vibrancy seems dwarfed, for now, by the massive impetus given to free speech (quite apart from the massive impetus given to intellectual vibrancy, as suggested above). A few words on the book's style are in order. In this book, the writing is crisp and refreshing, with curious anecdotes, interesting analysis of a variety of cases, and particularly readable language which other scholars of law would do well to emulate.

In conclusion, this book is stimulating and thought-provoking, and is recommended for those with an interest in privacy, free speech, and the interplay of those with technological innovation. The legal history elements of this work are well argued and supported. The forward-looking claims and suggestions would benefit from further development and research, but hopefully this book will catalyse further discussion and investigation of whether and how new technologies enhance or constrain intellectual privacy, and how the latter can be protected and fostered despite the changing ways in which intellectual creativity is pursued and shared.