Ken Gormley, 100 Years of Privacy

100 Years of Privacy*

I. INTRODUCTION

As the year 1990 was retired into the discarded calendar‑books of history, the United States celebrated a birthday that came and went in appropriate silence. It was one hundred years ago, in the winter of 1890‑91, that Samuel Warren and Louis Brandeis published their now‑famous article in the Harvard Law Review, entitled simply: "The Right to Privacy." In that compact twenty‑seven‑page work, appearing four years after the Law Review had been established at Harvard through the efforts of Brandeis and others, the authors argued that the common law had nurtured a new right, known simply as privacy, which demanded acceptance in American jurisprudence. "Political, social, and economic changes entail the recognition of new rights," wrote Warren and Brandeis, "and the common law, in its eternal youth, grows to meet the demands of society."1

In the hundred years after those ambitiously unsupported words were written in December of 1890, and gained widespread attention when volume IV of the Harvard Law Review was published in 1891, there have been literally hundreds of books and articles written about the notion of privacy in the United States. Many of the foremost legal scholars and philosophers of the twentieth century―Roscoe Pound, Paul Freund, Erwin Griswold, Carl J. Friedrich, William Prosser, Laurence Tribe have at one time or another attempted to wrestle down this evanescent concept. 2 Much of the literature has devoted itself to defining, with excruciating precision, exactly what this "right to privacy" means once it is hard‑boiled and peeled out of its shell of disjointed case law. Warren and Brandeis

*Ken Gormley, Attorney, Cindrich & Titus, Pittsburgh, Pennsylvania; Adjunct Professor, University of Pittsburgh School of Law. B.A.1977, University of Pittsburgh; J.D.1980, Harvard Law School. This Article is dedicated to Professor Archibald Cox, the late Professor Paul A. Freund, Retired Justice William J. Brennan, Jr., President John E. Murray, Jr., Robert J. Cindrich, and Dr. Holbert N. Carroll―all of whom contributed ideas, suggestions and guidance in helping the author complete this project, his "Poor Man's LL.M." I would also like to thank Sean Sheridan, who provided valuable research assistance in the early stage of this sprawling undertaking. Finally, my greatest appreciation goes to my beautiful wife, Laura, who encouraged me to rewrite this paper until it was the best thing I was capable of writing; and my children, Carolyn and Luke, who enticed me into jumping on the couch and reading Norman the Doorman in lieu of spending my entire life on the footnotes.

1 ARTHUR E. SUTHERLAND, THE LAW AT HARVARD 197‑98 (1967); LEWIS J. PAPER, BRANDEIS 32‑33 (1983). The phrase "right to be let alone" had been coined by Judge Cooley several years earlier. See THOMAS M. COOLEY, COOLEY ON TORTS 29 (2d ed. 1888).

2 Roscoe Pound, "Interests in Personality, 28 HARV.L.REV. 343 (1915). Paul A. Freund, "Privacy: One Concept or Many?," in PRIVACY 182 (J. Roland Pennock & John W. Chapman eds., 1971). Erwin N. Griswold, "The Right to Be Let Alone," 55 NW.U.L.REV. 216 (1960). Carl J. Friedrich, "Secrecy Versus Privacy: The Democratic Dilemma," in PRIVACY 105 (J. Roland Pennock & John W. Chapman eds., 1971). William L. Prosser, "Privacy," 48 CAL.L.REV. 383 (1960). LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW ch. 15 (2d ed. 1988). Warren & Brandeis, supra note 1, at 193, 195. See Milton R. Konvitz, "Privacy and the Law: A Philosophical Prelude," 31 LAW & CONTEMP.PROBS. 272, 273 (1966) (suggesting that development of right to privacy is ultimately linked to the development of philosophy and theology); ALAN F. WESTIN, PRIVACY AND FREEDOM, 7‑13 (1967) (tracing privacy notion to the ancient Greeks); MARGARET MEAD, COMING OF AGE IN SAMOA, 82‑85 (1949) (illustrating anthropological origins of privacy as a universal in human society).