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1992 Wis. L. Rev. 1335 (1992)
One Hundred Years of Privacy

handle is hein.journals/wlr1992 and id is 1347 raw text is: ARTICLES ONE HUNDRED YEARS OF PRIVACY KEN GORMLEY* In this Article, Professor Ken Gormley examines the evolution of privacy law in the United States one hundred years after Samuel Warren and Louis Brandeis authored their seminal piece in the Harvard Law Review in 1890-91. Professor Gormley argues that scholars have been unable to agree upon a one-size-fits-all definition of legal privacy because it actually consists of five distinct species: 1) The Privacy of Warren and Brandeis (Tort Privacy) 2) Fourth Amendment Privacy 3) First Amendment Privacy 4) Fundamental-Decision Privacy 5) State Constitutional Privacy Professor Gormley demonstrates that these five species are heavily interrelated, with historical jolts or 'catalysts producing new brands of privacy when existing law is incapable of dealing with unexpected societal and technological changes. Thus, he argues, seeking a simple definition of privacy is a misguided quest. Rather, privacy will remain extremely sensitive to historical triggers, and new permutations of this right to be let alone will inevitably develop as American democracy itself evolves. 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 * 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. Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 HARV. L. REV. 193 (1890). The article itself was published on December 15, 1890, at a price of

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