The Jurisprudential Foundations of Digital Rights: From Bodily Integrity to Informational Self-Determination

The conceptual architecture of rights, historically anchored in the protection of the physical body, faces unprecedented challenges in an era defined by datafication, ubiquitous sensing, and algorithmic processing. This chapter traces the jurisprudential evolution from bodily integrity to informational self-determination, arguing that traditional paradigms—while foundational—are increasingly insufficient for governing contemporary digital ecosystems. The analysis proceeds by excavating the philosophical and historical bedrock of digital rights, critically assessing seminal legal theories through the lens of modern technological capabilities. It demonstrates how the classic notion of a “right to be let alone” dissolves under the weight of ambient data collection, how control-based models of autonomy falter in complex data supply chains, and why a shift toward Helen Nissenbaum’s theory of “contextual integrity”—which frames privacy as appropriate information flow governed by situational norms—offers a more robust and adaptable framework. This reconceptualization is not merely academic; it establishes the normative foundation for the specific legal challenges explored in subsequent chapters, from algorithmic accountability to the geopolitics of data sovereignty. By re grounding rights in the dynamic interplay between information actors and contextual expectations, this chapter sets forth a jurisprudential compass for navigating the contested terrain of digital boundaries.

1.1 The Physical Prototype: Bodily Integrity as the Bedrock of Rights

The edifice of modern rights discourse finds its deepest foundations in the physical realm, specifically in the inviolability of the human body. Bodily integrity—the principle that one’s physical person is sacrosanct and subject to one’s own sovereign control—serves as the archetypal right from which other liberties have historically been derived. In common law traditions, this principle manifested early through the torts of battery and assault, which did not require proof of material harm but rather recognized the mere intentional touching or threatened touching of another’s person as a legal wrong. The rationale was profound: the body is the locus of personal autonomy, and any non-consensual physical interference constitutes a direct assault on the self. This conception was not merely about preventing pain or injury; it was about preserving the individual’s sphere of self-ownership and control over their own physical existence.

Constitutional law further entrenched bodily integrity as a fundamental right. In the United States, the Due Process Clauses of the Fifth and Fourteenth Amendments have been interpreted to protect a liberty interest in bodily integrity, forming the substantive due process backbone of decisions ranging from *Jacobson v. Massachusetts* (1905), which balanced state police powers against individual bodily autonomy in mandatory vaccination cases, to *Roe v. Wade* (1973) and its progeny, which located a woman’s right to terminate a pregnancy within the “zone of privacy” created by the “penumbras” of other constitutional guarantees, ultimately grounded in personal autonomy over one’s body. Similarly, the German Basic Law (Grundgesetz) enshrines human dignity (Art. 1(1)) as inviolable, and the Federal Constitutional Court has consistently interpreted this as protecting the physical and psychological integrity of the person. The European Court of Human Rights has derived a right to physical integrity from Article 8 (right to respect for private and family life) and Article 3 (prohibition of inhuman or degrading treatment) of the European Convention on Human Rights.

The philosophical lineage of bodily integrity stretches back to John Locke’s theory of self-ownership, where individuals are said to have property in their own persons, and to Immanuel Kant’s categorical imperative, which demands that we treat humanity, whether in ourselves or others, always as an end and never merely as a means. The body, as the vessel of agency and experience, is the primary site where this moral command is enacted. To violate bodily integrity is to reduce a person to an object, to deny their status as a rational agent capable of self-determination.

This physical prototype established two critical features that would later be transposed onto informational rights: (1) the notion of a *sphere*—a bounded domain over which the individual exercises exclusive control; and (2) the principle of *consent* as the legitimate mechanism for permitting intrusion. The legal response to physical trespass was to draw boundaries—literal and figurative—around the person, and to require affirmative permission for crossing them. These features would become the template for understanding privacy violations in the informational realm. However, as the following sections will demonstrate, the translation from physical to informational space is neither straightforward nor complete. The body is a finite, localized, and relatively stable object; information, by contrast, is non-rivalrous, easily replicable, and capable of instantaneous, global transmission. The very qualities that make information valuable in the digital age—its shareability, persistence, and aggregatability—also undermine the efficacy of a rights framework modeled on bodily integrity. Nevertheless, understanding this physical prototype is essential: it is the deep structure against which all subsequent expansions of the rights lexicon have been measured, and its residual influence continues to shape legal and popular intuitions about digital rights, often in misleading ways.

1.2 The Jurisprudential Birth of Privacy: Warren & Brandeis's "Right to Be Let Alone"

The transition from bodily integrity to a distinct right of privacy marks one of the most significant conceptual leaps in American legal thought, and it was precipitated by technological change. In 1890, Samuel D. Warren and Louis D. Brandeis, writing in the *Harvard Law Review*, published their seminal article, “The Right to Privacy.” Their impetus was the “recent inventions and business methods” of their day: instantaneous photography and the sensationalist press (the “yellow journalism” of Joseph Pulitzer and William Randolph Hearst). They observed that “modern enterprise and invention have subjected us to mental pain and distress, often far more grievous than mere bodily injury,” through the “unauthorized publication of letters, diaries, and other private documents” and the “invasion of the sacred precincts of private and domestic life.”

Warren and Brandeis did not invent the *concept* of privacy; they articulated its *legal* foundation. Their masterstroke was to reframe privacy not as a property right (which had been unsuccessfully argued in earlier cases involving stolen letters or photographs) but as an aspect of “inviolate personality”—a broader moral and legal interest in being left alone. They wrote: “The right to life has come to mean the right to enjoy life,—the right to be let alone; the right to liberty secures the exercise of extensive civil privileges; and the term ‘property’ has grown to comprise every form of possession—intangible as well as tangible.” By positioning privacy as a fundamental right inherent in personhood, they elevated it to a constitutional level, even though they primarily argued for its recognition in common law torts.

The “right to be let alone” is a deceptively simple phrase that carries profound implications. It establishes a *negative* liberty: a claim against interference. It defines a *sphere*—the private domain—from which others, including the state and private actors, are excluded unless justified by a compelling countervailing interest. Crucially, Warren and Brandeis linked this right to the “nature of man” and “the love of independence,” suggesting an evolutionary and almost natural law basis. Their framework was inherently *spatial* and *boundary-oriented*: priv