A Short History of Privacy: What everyone needs to know in 10 minutes Part I [Issue]

Introduction:
My last post promised a technical post on the limitations of Protonmail. I'm still planning on posting that but with single digit views and no up votes on my first post I decided to try something a little different this time to try to find my niche. So this post is an informational one on the law of privacy as it pertains to electronic communications and how that law evolved in the United States since before the Constitution. I always find that once you understand the history of a subject, you can understand all the nuances and seemingly counter-intuitive details of that subject. So here is my condensed version of communications privacy history.

A (very) Short History of Privacy (as it applies to communications)
In colonial times in what would later become the United States, privacy was a valued right. What was perceived as excessive search and seizure by the English government maintained this issue in the public discourse and motivated people to fight to protect the rights to free speech, free association, privacy (search and seizure), and the right against self incrimination. These rights are all guaranteed in the 1st, 4th, and 5th amendments in The Bill of Rights and in my mind, are all part of a single overarching right to control what people know about you. There is obviously many exceptions to this generalized view of these rights, such as criminal records and other data allowing others to gauge your reputation but in general having a few innocent secrets is a good thing and the colonists knew this. Note that Warren and Brandeis articulated this idea in their article 'The Right to Privacy' in 1890, “The common law secures to each individual the right of determining, ordinarily, to what extent his thoughts, sentiments, and emotions shall be communicated to others.” This quote was originally geared towards civil law but if it holds true in civil law then it must also be true in civil rights law.

The law of the time protected against eavesdropping, which was defined in the language of the era as “listening under walls or windows, or the eaves of a house, to hearken after discourse, and thereupon to frame slanderous and mischievous tales.” So, for them, intent to cause harm at the very least the form of embarrassment was an integral part of eavesdropping. It was not just the act of gathering the information. The law also protected the individual's home. The sentiment that “your home is your castle” appeared in the historic record as early as 1499.

During the time of the American Revolutionary War, the greatest privacy concern was the general freedom from government intrusion. The use of general warrants and writs of assistance gave sweeping search and seizure power to authorities without any evidentiary basis and many times were used to seize the personal papers of enemies of the state including political dissenters, authors, and printers of seditious material. This governmental over-reach was the driving force behind the 3rd(quartering of soldiers), 4th(search and seizures), and 5th(self-incrimination) amendments. Thus laying the constitutional frame-work for privacy laws in 1791 with the ratification of the Bill of Rights.

After the constitutional guarantees of privacy in the home, the question turned to privacy outside the home, specifically in communications. As the only long range communications method of the time, mail and its privacy protections was of great concern. Many of the framers of the constitution expressed concern over the privacy of the mail even after after Benjamin Franklin required all postal clerks to swear an oath not to open the mail. It was not until 1825, that Congress enacted a statute that provided criminal penalties for anyone interfering in the delivery of the mail. Finally, in 1877, 86 years after the Bill of Rights, the Supreme Court decided that the Fourth Amendment did prohibit government officials from opening letters without a warrant wherever they may be, not just inside the home.

In 1844, the telegraph was invented and the first new privacy issue in the U.S. was created along with it. Wire tapping techniques capable of intercepting telegraph messages were developed almost as soon as the telegraph system was deployed.

After the Civil War, arguments broke out in Congress between those seeking access to telegram and those who recognized the need for privacy in communications. This debate was quick to become public and many likened the invasion of the telegram's privacy to the invasion of the individual's papers. Papers were already protected by the 4th amendment as well as, other legal protections already afforded to the mail. In 1880, Congress debated a bill to protect the privacy of telegrams but the bill was defeated. This left the individual states to legislate protections for telegrams and as can be expected left the country without a uniform law and therefore with spotty protection. In the meantime many courts upheld the privacy of telegrams by analogizing them to letters and quashing subpoenas for release of telegrams.

Conclusion:
I am going to cut this post off here just prior to 1876, at the end of the telegram issue and just before the telephone was invented. I will pick up with the telephone in Part II of 'A Short History of Privacy: What everyone needs to know in 10 minutes'.

A couple of points that I would like to highlight are the speed with which the Congress moves to protect the privacy of the citizen and the hesitancy of the Supreme Court to recognize the similarities between the mail and telegrams and instead focus on the differences at the cost of privacy protections for the telegram traffic. For both issues discussed here, Congress did nothing to protect citizens against governmental seizure. For the mail, it took 86 years for the Supreme Court to decide that the 4th amendment did protect the mail and in all that time Congress did nothing. For telegrams, neither Congress nor the Court did anything to protect the telegram and left it to lower legislative bodies and lower courts to protect telegrams where they would. With all the similarities between the mail and telegrams, the extension of privacy rights to telegrams seems straight forward. Externally, both the mail and telegrams are long range communications platforms, they both take written test as the input and deliver written text as output. The primary difference to the customer being the speed at which the telegram delivers the message and the higher cost. Internally, the differences are obvious but the function of the two services are the same. Therefore, should be given the same protection.

Note:
I have tried to include every case or piece of legislation that has had a significant impact on communications privacy up to this point. If anyone knows anything that I overlooked please let me know. The rest of this story is coming soon.

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References:
This reference is a great overview of privacy law history in general:
Daniel J. Solove, A Brief History of Information Privacy Law in PROSKAUER ON PRIVACY, PLI (2006) http://scholarship.law.gwu.edu/cgi/viewcontent.cgi?article=2076&context=faculty_publications

This reference is on the tort basis of privacy law:
Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 HARV. L. REV. 193 (1890)