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PRIVACY & THE TELEGRAPH Moving from places to people and from relationships to individuals

Friday, May 20, 2011


Four pivotal communications technologies The Postal System - 18th The Telegraph - 19th The Telephone - 20th The Internet - 20th - 21st

Friday, May 20, 2011


Technology outpaces law Industrial Revolution and Factories Limited worker protections Telegraph Allows greater central gov’t control Business becomes national Railroads Business entities grow in size and power Friday, May 20, 2011


Big business and the growth of state power A more powerful, centralized state grows in the 19th c. Modern police emerge Reconstruction gives federal gov’t power Monopolies, led by railroads and steel, began to dominate

Friday, May 20, 2011


A little legal history... American law is founded on English common law circa late 18th century English common law protections, combined with “outrages� complained about pre-Revolution, formed the basis of the Bill of Rights The U.S. Constitution and the Bill of Rights only protected against actions by the federal government until Reconstruction (1868 and the 14th Amendment, specifically) Friday, May 20, 2011


Expectations of privacy The modern view of the Fourth Amendment protects when there is a “reasonable expectation of privacy� This emerged in a 1928 dissent by Brandeis, and became law in 1967 But it was not the understanding in the 19th century Friday, May 20, 2011


... about privacy ... The “right to privacy” is a late 19th/early 20th century creation: Warren and Brandeis first articulated its existence in an 1890 law review article that sought to protect an individual’s“inviolate personality” It is not explicitly in the Constitution, but modern version is considered to derive from its “penumbra” (Griswold, 1965, a case dealing with contraception)

Friday, May 20, 2011


... and confidentiality “Confidentiality” was the key concern in the 19th century It deals with relationships instead of individuals: “it involves trusting others to refrain from revealing personal information to unauthorized individuals” (Richards and Solove) Protected in many forms, but never constitutionalized: contracts, trade secrets, unjust enrichment, copyright, unfair competition, non-compete agreements, and more

Friday, May 20, 2011


Trespass and the home In a key 1765 English case (Entick v. Carrington), agents of King George III broke into a private residence and seized papers Lord Camden ruled the search illegal Foundational for American 4th Am. (unreasonable search & seizure) Warrant requirement focused on access to private property (the home, especially) and the importance of the “sanctity of a man’s home”

Friday, May 20, 2011


Postal mail Predecessor to the telegraph, the postal system is an 18th century creation Mail considered “inviolate” based on tradition, but that was not constitutionalized until 1878 (in ex parte Jackson) Letters protected “as if they were retained by the parties forwarding them in their own domiciles” First time the Supreme Court did not look at the Fourth Amendment in terms of trespass to real property, but rather in terms of the private status of personal materials Friday, May 20, 2011


Inviolability of telegraphic correspondence? In 1879, Michigan Justice Cooley argued for extending 4th Amendment to telegrams Analogized to Entick (1765) and postal mail (protected by Supreme Court in 1878) Concerned with the “exposure of … private papers to the scrutiny and misconception of strangers.” Not a full shift to 20th century concerns: Not worried by police action--more concerned with gossips and business secrecy Unlike Brandeis and Warren, concerned with confidentiality of correspondence, not the privacy of the individual affected by revelation But moves away from trespass--location of correspondence immaterial

Friday, May 20, 2011


Privacy is not about property Judge Noble Hand in 1897 foreshadows the 20th century view: “A great argument of those who deny the existence of a right to privacy is always based on expressions found in some of the cases that an injunction will only issue to protect property.” Property is a “bundle of rights,” not a thing in particular Right to prevent publication of a letter is not based on physical ownership, and yet the courts still protect it Wherever a real right is violated a real remedy is afforded by the law Can recover for false imprisonment (without touching) and assault (with no contact) “If, then, the protection of the privacy of the individual is practically so desirable, why should the law hesitate to give that protection?”

Friday, May 20, 2011


The path to (non-) protection How does something achieve Constitutional protection? Why didn’t the telegram ever make it? Note: it took until 1967 for telephone calls to become fully protected by the Fourth Amendment (a 1928 case still required “trespass,” a very 19th century view) Friday, May 20, 2011


Becoming Constitutional via Anuj C. Desai

(1) Lawmakers pass a statute (e.g., creation of a postal system) (2) That institution gains certain attributes as a result (statute forbids postmasters from opening letters) (3) Social practice embeds those attributes in the institution (keep mail confidential! it’s your duty! everyone knows that) (4) The courts take that and embed it into the Constitution (ex parte Jackson, 1878)

Friday, May 20, 2011


Gettin’ statutory... Many state laws punished telegram operators who broke confidences but exempted judicial proceedings--must reveal to a court Telegraph company regulations insisted that the “sanctity of the mails� extended to telegrams, and held operators to strict confidentiality Western Union tried to protect even against legal actions to reveal telegrams In 1878, Congress controversially forced Western Union to turn over personal telegrams to Congress To appease critics, Congress then passed a resolution to protect telegrams but still exempted its own inquiries and did not acknowledge the 4th Am. at all

Friday, May 20, 2011


No Constitution for you! Samuel Morse sends, “What hath God wrought” in 1844 Michigan, 1860: telegraph operator jailed for refusing to turn over telegram, arguing it was “privileged” (no decision) Maine, 1870: “telegraphic operator, as such, can claim no exemption from interrogation” (no confidentiality from state) Friday, May 20, 2011

Federal Court, 1876: Western Union could not refuse subpoena of customer telegrams (no confidentiality from state) Missouri, 1880: state equivalent of 4th Am. required high standard for subpoena Federal Court, 1884: court ignored 4th Am. and found no special privilege for telegams


The settled law by 1920 A telegraph company is not privileged as to messages transmitted by it; but on the other hand, such messages are not to be made public by the telegraph company. (William W. Cook , A Treatise on Telegraph Law, 203)

Friday, May 20, 2011


So what happened to telegrams? Why did Desai’s 4 step process of constitutionalization not happen for telegrams? Overtaken by a new technology: the telephone And the law was never forced to readdress telegrams Currently? Probably protected, but perhaps only because of U.S. v. Warshak from 2010 (email) Friday, May 20, 2011


Privacy & the Telegraph