Communications - excerpt from pages 61 through 65
"The privacy of communications-in a variety of forms-has long been protected in many societies. Numerous constitutions from around the world protect the privacy of communcations. For example, Mexico provides that "private communications are inviolable," Chile protects, "the inviolability...of all forms of private communications," Germany ensures that the "privacy of letters, posts, and telecommunications shall be inviolable," Belgium guarantees that the "confidentiality of letters is inviolable," and the Czech Republic protects the "secrecy of letters," as well as "messages communicated by telephone, telegraph or other such facilities."
The History of communications privacy indicates that it was more the products of social desires that existing realities. In other words, communications privacy was not a natural state the law preserved, but a form of protection the law created. For example, In America, the privacy of letters was formed in significant part by a legal architecture that protected the confidentiality of letters from other people and government officials. In colonial America, mail was often insecure; it was difficult to seal letters; and the wax often used to keep letters sealed was not very effective. Before the post office was established, mail was deposited in taverns for travelers to deliver. Privacy of letters was precarious, but protected to some degree by the fact that many people were illiterate.
The privacy of letters improved somewhat after the English Post Office Act of 1710 created the American postal system. Many people, however, doubted that the colonial postal service would respect their privacy, and there was widespread suspicion that the postal clerks read letters. A number of prominent individuals, such as Thomas Jefferson, Alexander Hamilton, and George Washington, decried the lack of privacy in their correspondence and sometimes even wrote in code. Washington expressed concern that "by passing [letters] through the post office, they should become known to all the world." Jerrson complained in 1789, "The infidelities of the post office and the circumstances of the times are against my writing fully and freely." Since letters could fall in to the wrong hands and be gazed upon by the wrong eyes, people were guarded about revealing private information.
Despite these realities and people's expectation that letters would not be confidential, the law evolved to provide strong protection of the privacy of letters. Early on, the 1710 English Post Office Act declared, "No Persona or Persons chall presume wittingly, willingly, or knowingly, to open, detain, or delay, or cause, procure, permit, or suffer to be opened, detained, or delayed, any Letter or Letters, Packet or Packets." To address persisting privacy concerns, Benjamin Franklin, who served as the colonial postmaster general from 1753 until the Revolution, required his employees to swear an oath not to open mail. In the late eighteenth and early nineteenth centuries, the U.S. Congress passed several laws prohibiting the improper opening of mail. The U.S. Supreme Court held in 1877 that despite the fact that people turned letters over to the government for delivery in the postal system, sealed parcels were protected from inspection by the Fourth Amendment.
The extensive protection of privacy of letters stemmed from a public desire to treat them as "sacred." According to historian David Seipp, "Nineteenth century public opinion regarded the 'sanctity of the mails' as absolute in the same way it esteemed the inviolability of the home." One court declared in 1811 that the law must respect "the sacredness of a man's correspondence." Many state laws protected against "the violation of epistolary correspondence." According to Joseph Story, one of the most famous American jurists of the nineteenth century, the unwarranted disclosure of personal letters "is perhaps one of the most odious breaches of private confidence, of social duty, and of honorable feelings, which can well be imagined." For Story, letters contained "inviolable secrets" that were "reposed in the bosoms of others under the deepest and most affecting confidence." He noted that the law would prevent the publication of letters that "would be a violation of a trust or confidence."
The story of the privacy of telegraph communications resembles that of letters. After the telegraph was invented in 1844, concerns about the privacy of telegraph communications soon arose. Western Union demanded that its employees keep all messages "strictly private and confidential." Western Unions own rules were buttressed by laws in almost every state in America that restricted telegraph employees from improperly disclosing telegrams. When Congress began seeking telegraph messages for investigations, a public outcry ensued.
The New York Times proclaimed the practice "an outrage upon the liberties of the citizen which no plea of public necessity can justify" and asserted that "every person using the telegraph to communicate about his private affairs assumes that a telegram is as free from exposure as a letter." Other newspapers chimed in with similar sentiments. A bill to protect the privacy of telegraph communications was proposed and ultimately rejected in Congress, which instead resolved to refrain from inquiring into telegraph communications except in compelling circumstances. States further protected telegraph messages by prohibiting their interception. California, for example, outlawed intercepting telegraph communications as early as 1862.
As with the telegraph, privacy concerns emerged shortly after the invention of the telephone in 1876. In the telephone's early days, calls were far from private. Until the middle of the twentieth century, many people used party lines-shared telephone service with several other households. Eavesdropping was a constant worry. In chronicling the history of the telephone, sociologist Claude Fischer notes, "From the beginning of telephony, people expressed concern that they were being overheard, at first simply by others in the same room-one had to speak loudly-and then by operators or fellow subscribers on a party line.
These realities, however, did not lead to less privacy on the telephone. Instead, in America and elsewhere, laws protecting the privacy of telephone communications were passed. In particular, the practice of wiretapping stirred strong condemnation and potent legal response. Soon after telephone wiretapping began in the 1890s, several states prohibited it, such as California in 1905. In the first few decades of the twentieth century, over half the states had made wiretapping a crime. In 1928, however, the Supreme Court held in Olmstead v. United States that the Fourth Amendment did not protect against wiretapping. The Court's decision in this widely known case, nicknamed "the case of the whispering wires," received considerable public criticism. In dissent, Justice Oliver Wendell Holmes went so far as to refer to wiretapping as a "dirty business." A year later, bills were introduced in Congress to protect against wiretapping, and in 1934, Congress passed a law making wiretapping a federal crime. In 1967, the Supreme Court changed its position on wiretapping, overruling Olmstead in Katz v. United States. One year later, Congress passed Title III of the Omnibus Crime Control and Safe Streets Act of 1968, which required law-enforcement officials to obtain a special warrant before wiretapping and criminalized wiretaps by private parties. Due to these developments, U.S. law strongly protects against wiretapping telephone communications. Today, countless countries around the world restrict wiretapping in their constitutions and laws. Thus the law responded to the uncertain degree of privacy in telephone communications by imposing robust wiretapping regulations.
In discussing privacy of a particular matter, it is important to distinguish between its current status and society's aspirations. For a long time, communications were quite insecure, and their status could hardly be labeled "private." The social desire, however, was for communications to be private even when they were not. We make things private with the tools of law and technology. Communications became private because people wanted them to be private. Therefore, to assess whether a particular practice is private, we must look not only to the past and the present, but also to our future aspirations. Privacy is a condition we craete, and as such, it is dynamic and changing.
