Daniel J. Solove

We should conceptualize privacy by focusing on the specific types of disruption and the specific activities disrupted rather than looking for the common denominator that links all of them. … Instead of construction an understanding of privacy from the top down by first seeking to elucidate an overarching conception of privacy, we should develop our understanding from a bottom-up examination of the problems based on analogical reasoning. (76)

He takes a common-law jurist’s approach to analyzing a problem, one enshrined in the legal requirement that American courts must deal above all with specific “cases and controversies,” not general theories or philosophical ideas. From the specific facts and harms one can then reason by way of analogy to larger concepts, deriving rules that can be applied to current and future situations. In short, his is a classic American approach to legal reasoning. But it’s classic for a reason: it works.

The Six

To facilitate his analysis, Solove likes to use “classifications” and “taxonomies.” He thus begins by dividing privacy into six types (which he notes “often overlap”). These six are not so much normative or suggested analytic categories as they are ones commonly used in privacy analysis:

1. the right to be let alone–Samuel Warren and Louis Brandeis’ famous formulation of the right to privacy;
2. limited access to the self–the ability to shield oneself from unwanted access by others;
3. secrecy–the concealment of certain matters from others;
4. control over personal information–the ability to exercise control over information about oneself;
5. personhood–the protection of one’s personality, individuality, and dignity; and
6. intimacy–control over, or limited access to, one’s intimate relationships or aspects of life. (13)

1. The Right to Be Let Alone

This deeply influential category comes from Samuel Warren and Louis Brandeis’ 1890 law review article, “The Right to Privacy,” and “views privacy as a type of immunity or seclusion” (18). Warren and Brandeis were responding to the growth of an increasingly invasive and fast-moving press by seeking to demonstrate how traditional common-law torts could be rationally extended to cover this new situation, without introducing any radically new concepts.

Though it seems to emphasize noninterference, it actually often consists “of a claim for state interference in the form of legal protection against other individuals” (18). In many respects, especially as articulated to deal with the situation of invasive journalism, it runs into potential First Amendment conflicts that require, at the very least, balancing.

2. Limited Access to the Self

The point of this view of privacy–closely related to the previous–is to allow “every man to keep his affairs to himself” and “recognizes the individual’s desire for concealment and for being apart from others,” but it “is not equivalent to solitude [nor] of withdrawal from other individuals” (18). Conceptually, one flaw with this view is that it provides little guidance “as to the degree of access necessary to constitute a privacy violation” (20). It also does not clearly indicate who decides: is it about me deciding what access others have to my self? Or is there a sort of absolute or universal standard that can be brought into play?

3. Secrecy

Judge Richard Posner called this “concealment of information,” or the “right [of an individual] to conceal discreditable facts about himself” (21). Solove describes secrecy “as a subset of limited access to the self,” but in only one dimension: “the concealment of personal facts” (22). According to Solove, this conception “underpins the constitutional right to information privacy, an offshoot of … cases such as Griswold v. Connecticut and Roe v. Wade” (22). It is also the aspect of privacy I identify most firmly with a clear constitutional right: the Fourth Amendment right to be free from “unreasonable searches and seizures.”

Legally, a privacy-as-secrecy approach often means that once a fact leaks, “it can no longer remain private” (22). Thus, Fourth Amendment jurisprudence “holds that matters that lack complete secrecy are not private” (22). This, garbage receives no protection because it is “knowingly exposed to the public” since it is “readily accessible” (22). Surveillance from aircraft does not implicate the Fourth Amendment either, since “the surveillance was conducted from a public vantage point” (22).

But such characterizations of privacy as secrecy misses out on a desire for confidentiality: “sharing the information with a select group of trusted people” (23). Protecting confidentiality–which I, picking up on Solove’s work, identify as a 19th-century concern–is a critical form of privacy for many people, especially in the medical context. Thus, understanding privacy as secrecy alone is too restrictive and too limited.

4. Control over Personal Information

According to Solove, a Clinton-era task force on privacy defined it as follows:

an individual’s claim to control the terms under which personal information–information identifiable to the individual–is acquired, disclosed, and used (24).

This is also the conception that healthcare laws related to privacy (like HIPPA) use. But again, this conception is overly narrow, since excludes non-informational aspects of privacy, “such as the right to make certain fundamental decisions about one’s body, reproduction, or rearing of one’s children” (25). It also generally fails to define what “control” means, and usually fails to effectively define the scope of what is protected (25–26).

Another, related approach to control over personal information makes information into property. This Lockean approach is “the backbone of intellectual-property law,” which itself derives much of its justification from the “romantic-author” notion of individual authorial (or inventive) creation: “one gains a property right in something when it emanates from one’s self” (26). The tort of appropriation, and the connected right of publicity, “protects people against others’ using their image or likeness for commercial gain.

But this conception also has problems, too. Personal information “is both an expression of the self and a set of facts–a historical record of one’s behavior” (27). Denying journalists the right to present those facts implicates the First Amendment, among other issues. Thus, truth is a defense to defamation, which itself is tort related to privacy.

Additionally, personal information is often formed through relationships (see confidentiality, above, too), and not by a single individual’s “self.” Thus, one person recounting their own story may implicate the story of someone else–should they then be restricted from doing so because it infringes on the other person’s privacy?

5. Personhood

The conception here is to protect “the integrity of personality,” and “often is used in conjunction” with other theories (30). Solove describes this as the theory underlying Griswold v. Connecticut, Eisenstadt v. Baird, and Roe v. Wade. It involves “choices central to personal dignity and autonomy” (31). I tend to agree with those that identify this right as more connected to liberty and autonomy than to privacy, but others (like Judith DeCew) suggest that there is an “intuitive notion of privacy invoked in the constitutional privacy cases” (31). In any case, I find “personhood” to be too vague to be useful, and I also find that thinking of it in terms of autonomy is more revealing than conceptualizing it as privacy.

6. Intimacy

This perspective connects privacy with personal human relationships as well as “individual self-creation” (34). It can be difficult to define exactly what is “intimate,” except in terms of what “individuals want to reveal only to a few other people” or similar “in-practice” definitions (35). It does help to unify certain conceptions of privacy with autonomy, though: “abortion is a private decisions because it is ‘an intimate one’” (36).

But again, this definitions tends to be too broad in scope. It is in many respects not much more useful than the term “privacy” itself (36). At the same time, it is overly limiting as a general theory because it is overly focused on interpersonal relationships alone.

So Now What?

Solove contends that the above theoretical conceptions “fail on their own terms” and “never achieve the goal of finding the common denominator” (38). So what should we do, then? His proposal is to dispense with “top-down” philosophy and to instead focus on the problems we face in four dimensions: method, generality, variability, and focus.

His method is pluralistic and draws on Ludwig Wittgenstein’s family resemblances: “privacy is not one thing, but a cluster of many distinct yet related things,” Solove writes (40). By generality, he means that he will pick a useful level of generality, one that is contextual and practical, not abstractly philosophical (40–41). He also acknowledges the variability of privacy and its historical and cultural contingency. He does not seek to provide a firmly fixed foundation for privacy, but does feel “it can still have sufficient stability while accommodating variability” (41). Finally, he limits his focus on privacy to privacy problems. Again, he seeks to avoid the abstract and philosophical and to stay with the particular and specific (41).

Solove’s approach may not appeal to philosophers, but it has the advantage (and, perhaps, disadvantage) of being practical for lawyers and judges to deal with. I approve of his practical goals, and I think the methods he uses can be usefully extended to historical cases as well as contemporary ones.

“Visible downgrading” by Alex Wellerstein. CC BY 2.0 license.

The concept of “privacy”–as in “the right to privacy”–can be understood in a number of ways. This multitude of potential meanings and uses is partly why the concept is controversial, confusing, and perhaps even contradictory. Previously I have discussed the difference in perceptions of privacy in the 19th century, where the legal focus seemed to be more on “confidentiality” than what we have come to understand as “privacy” today. That is, the 19th century concern was with maintaining trust relationships between people rather than with protecting either secrecy or autonomy (although that is not to say that these were not valued).

Autonomy

This changed with the 1890 publication of the Samuel Warren and Louis Brandeis law review article called “The Right to Privacy.” In this article, Warren and Brandeis are actually concerned with something more akin to autonomy than secrecy: “from Greek autonomia, from autonomos  ‘having its own laws,’ from autos ‘self’ + nomos ‘law’” (from Apple’s dictionary app).  That is, allowing people to control their own self-identity, rather than allowing it to be exploited by (for example) yellow journalists. Secrecy, on the other hand, is about keeping something away from the knowledge of others. The concepts are related, but distinct and different, and require different legal approaches.

“Paparazzi” by Clément Seifert. CC BY-NC-SA 2.0 licensed.

The Warren and Brandeis article advocated for the protection of a person’s “inviolate personality” and the “fundamental right to be let alone.” They were not concerned with illegal government searches of private residences–or even the trespasses of journalists in private land–but rather with the publication and dissemination of information that, they believed, most properly belonged to a person. In other words, their approach was akin to a broad notion of copyright or “right of publicity,” because it proposed allowing people to control the publication of their own likeness (photos of themselves, for example). Such control was based on a kind of “moral right,” in a sense, to own one’s own self, or to be “autonomous.” The implications of a right to control the publication of information about one’s self has the potential to conflict with the First Amendment rights of others in a way that a right to privacy as secrecy might not.

In 1928, now a Supreme Court justice, Brandeis wrote in dissent in Olmstead v. U.S. that the right to privacy was the “right to be left alone–the most comprehensive of rights, and the right most valued by a free people.” Cornell’s Legal Information Institute explains that the right to privacy has thus “developed into a liberty of personal autonomy protected by the 14th amendment.” The focus on a “right to privacy” as “a liberty of personal autonomy” is why the Fourteenth Amendment (due process and equal protection), and not the Fourth Amendment (search and seizure), is often so important today when discussing privacy, and is the constitutional underpinning for key decisions like Roe v. Wade.

Secrecy

“Completely Tapped” by Byung Kyu Park. CC BY-SA 2.0 license.

A right to secrecy is most closely aligned with the Fourth Amendment (search and seizure) and with trespass, and less with the “penumbra” of due process or equal protection. A right to keep things secret is also about “inviolability” in some sense. Thus, in Olmstead, Brandeis could argue that a wiretap could intrude on a “right to privacy”–the “right to be let alone”–as part of a violation of the Fourth Amendment, even though no publication or dissemination had necessarily occurred. A right to autonomy, to protect one’s self, might well require a right to secrecy in a case involving wiretaps, but it has less value in protecting abortion rights, for example, where the real question is one of self-determination, not secrecy.

Approaching a right to secrecy legally, one might prosecute an overzealous journalist not for the publication of embarrassing information–and certainly not for photos taken in public places–but for a trespass involved in obtaining private letters. In some cases, the First Amendment might still be implicated (think of the Pentagon Papers), but the restraint on speech is much weaker when what is being restricted is not directly the publication of materials, but rather the manner in which they were obtained.

In this sense, then, data privacy laws–which Eugene Volokh, for example, has explained are in many ways in conflict with the First Amendment–might be more readily disentangled from that constitutional problem if they are realigned with traditional laws against trespass. The law, then, would not be focused on preventing publication (although that might be an issue still, and might still have First Amendment implications), but rather on punishing transgressions or trespasses.

Related articles

• An argument for the “Inviolability of Telegraphic Correspondence” (inpropriapersona.com)
• The slow pace of Fourth Amendment change (inpropriapersona.com)
• The Fourth Amendment: from property to people (inpropriapersona.com)

In the old days, safes and locks kept client data secure. More recently, attorneys stored their data on local PCs and backed up to disk or tape, which is then stored under lock and key (preferably offsite).

Stealing data required physical access, Accessing data, though, could conceivably occur via legal means, including via subpoena and search warrant. The real protection from this was the existence of evidentiary privilege, which excluded legally protected materials regardless of how they were acquired.

Now on to Dropbox, Google, and so on. According to PC Magazine,

The updated terms specify that Dropbox will turn over data: to comply with the law; protect someone’s safety; prevent fraud or abuse on Dropbox; or protect Dropbox’s property rights. If Dropbox agrees to hand over data, the company will decrypt it before doing so. If you have encrypted it before storing it on Dropbox, though, it will remain encrypted.

…

Dropbox said it receives about one government request per month for its 25 million users. It also stressed that it doesn’t just hand over information when asked.

“Our legal team vets all of these requests before we take any action. The small number of requests we have received have all been targeted to specific individuals under criminal investigation,” Dropbox said in a blog post. “If we were to receive a government request that was too broad or didn’t comply with the law, we would stand up for our users and fight for their privacy rights.”

via Dropbox Defends Privacy, Law Enforcement Policies | News & Opinion | PCMag.com.

So what does this mean for lawyers storing client data? Well, if it’s protected under attorney-client privilege, it means that–as long as you trust Dropbox not to make a mistake–then such legal access is no more of a problem than with traditional files (and plenty of screw-ups occurred with traditional paper!). Trusting Dropbox is likely not much different from trusting any third party to store your data, paper or otherwise–and that’s pretty standard.

If, on the other hand, you are more concerned with non-privileged materials (trade secrets, perhaps, or other material that might be excluded at trial but still cause harm), then you likely should not trust your data to Dropbox or any other cloud-based or third-party solution of any kind. If you don’t want to go quite that far, try a system that fully encrypts your data first, before it goes across the wire and before it hits the remote server.

TrueCrypt then Dropbox meets these criteria, or a Dropbox-like service such as SpiderOak (which I use).

So the fact that Dropbox allows legal access to your data is not the end of the world for use of the cloud, even for lawyers. But for truly secure offsite storage, likely more secure than even old-fashioned paper storage, consider solutions that provide end-to-end encryption.

Related articles

• Dropbox Lied to Users about Data Security, Complaint to FTC Alleges (wired.com)
• Why Dropbox’s Privacy Policy Is OK (Just Proceed Carefully) (pcworld.com)

UC Irvine’s Office of Research Administration quickly summarizes the difference as follows: “Privacy is about people. Confidentiality is about data.” Now, what does that mean?

What is “confidentiality”?
Modern medical research is deeply concerned with both confidentiality and privacy, and federal regulations maintain the distinction between the two. Because of this contemporary concern, the Office of Research Administration at UC Irvine provides a good explanation of confidentiality vs. privacy in the medical context. According to the UCI ORA, confidentiality is focused on information and trust about someone, and deals with the “treatment of information that an individual has disclosed in a relationship of trust.”

The historical meaning is the same, according to Privacy’s Other Path: Recovering the Law of Confidentiality: “Confidentiality focuses on relationships; it involves trusting others to refrain from revealing personal information to unauthorized individuals.” Out of this has grown legal protections for maintaining and validating these important relationships. Such protections include the law of evidentiary privilege (attorney-client privilege, spousal privilege, etc.), fiduciary duty, trade secrets, and even the enforcement of contracts and non-compete agreements.

The law of confidentiality, although well grounded in common law and in statutory law, has found only limited support in the U.S. Constitution, specifically in the right against self-incrimination and the right to due process (both in the Fifth Amendment, then applied to the states via the Fourteenth Amendment) do connect, I think, with the law of confidentiality.

What is “privacy”?

“The right to be left alone–the most comprehensive of rights, and the right most valued by a free people.“
– Supreme Court Justice Louis Brandeis, Olmstead v. U.S., 277 U.S. 438 (1928)

Privacy, turning again to UCI and the contemporary context, is about people, and is about the “control over the extent, timing, and circumstances of sharing oneself (physically, behaviorally, or intellectually) with others.”

Historically, one can look to Samuel Warren and Louis Brandeis’ groundbreaking law review article on the right to privacy, where, in the words of Neil Richards and Daniel Solove, “the goal of privacy protections [was not seen as] enforcing the norms and moralities of relationships but as protecting an ‘inviolate personality’ and the feelings of the individual from injury.”

The right to privacy argued for by Warren and Brandeis’ 1890 law review article has grown into the Constitution since they originally articulated it, according to the Legal Information Institute at Cornell:

The right has developed into a liberty of personal autonomy protected by the 14th amendment. The 1st, 4th, and 5th Amendments also provide some protection of privacy, although in all cases the right is narrowly defined.

Additionally, statutory protections also exist at both the state and federal level:

The Constitutional right of privacy has developed alongside a statutory right of privacy which limits access to personal information. The Federal Trade Commission overwhelmingly enforces this statutory right of privacy, and the rise of privacy policies and privacy statements are evidence of its work.

Unlike the law of confidentiality, the right to privacy has developed deep support in Constitutional interpretation. The Fourth Amendment, prohibiting unreasonable searches and seizures, is the most obvious support, but additional privacy protections are found in the “penumbra” of the Constitution, including the First, Fifth, and Fourteenth Amendments.

I will explore some of the historical impact of this difference in future articles.

Related articles

• Law of privacy vs. confidentiality in the nineteenth century (inpropriapersona.com)
• What was the “right to privacy” in 1948? (inpropriapersona.com)

With the introduction of the telegraph in the 1800s, some jurists, recognizing the growing importance of telegraphic communication, advocated for a kind of “telegraph operator-customer” privilege. Doing so would foster this new communication medium, since using it required divulging potentially confidential information to the telegraph operators. This approach failed, and a new one, relying on the Fourth Amendment, failed to take hold before telegrams lost their special place in American life.

Michigan, 1860

As early as 1860, a justice of the peace in Michigan jailed a telegraph operator who refused to turn over telegrams relevant to a murder investigation, arguing that such communications were privileged.

The attorney for the operator argued before the Michigan Supreme Court in In Re Farnham, 8 Mich. 89:

That communications intrusted to an operator for transmission by telegraph, as well as those received by him for delivery, are confidential, and he is not at liberty to disclose them: Comp. L., §§ 2064, 5912. The justice has no right to require the disclosure of communications which the law says he shall not disclose. Compare the provisions with respect to ministers and physicians: Comp. L., §§ 4322, 4323; Johnson v. Johnson, 4 Paige, 460.

The reason why the statute prohibits the telegraph operator from disclosing the communications, is the same as in the case of attorneys, ministers and physicians–that of public policy; the idea that on the whole more good will result to the people generally by the prohibition and immunity than without it. And no good reason for the rule can be urged in the case of attorneys, physicians and ministers, that does not apply with equal if not greater force to the case of telegraph operators.

In the end, though, the Michigan Supreme Court decided the question would be “improper for the court to pass upon,“since they decided the “examining magistrate” could not commit someone for refusing to testify anyway, thus neatly sidestepping the privilege question

Maine, 1870

Another state supreme court, this one in Maine, was faced with a similar argument about the potential for granting privilege to telegraphic communications in 1870 (State of Maine v. Alden Litchfield, 58 Me. 267). The defendant argued for privilege, but the court disagreed, saying that:

a verbal message … would be admissible. The mode of transmission to the person delivering the message, whether by telegraph or otherwise, has nothing to do with the matter. … Nor can telegraphic communications be deemed any more confidential than any more confidential than any other communications. …

The court goes on to say, “The honest man asks for no confidential communications, for the withholding of same cannot benefit him. The criminal has no right to demand exclusion of evidence because it would establish his guilt.” In short, the “telegraphic operator, as such, can claim no exemption from interrogation.”

West Virginia, 1874

Similar in its holding if not its logic, the West Virginia Supreme Court, in National Bank v. National Bank, 7 W. Va. 544 (1874), decided not “to approve the doctrine that … telegraphic communications are privileged from disclosure,” noting that while “[l]etters passing through the mail are protected by an act of Congress from being seized and opened for the purpose of furnishing testimony,” the same was not true of telegrams. Adopting the new “privilege” would “limit the field of inquiry after truth,” and doing so should be left to the legislature, not the courts, since it was “unknown to the common law.”

Federal Court, Missouri, 1876

In United States v. Babcock, 24 F. Cas. 908 (1876), a federal court held that, despite Western Union’s attempt to quash, the broadly written subpoena ordering them to produce telegrams was valid and binding, since it “describes, with sufficient particularity, indeed, with all the particularity that seemed to be practicable, under the circumstances, the very messages that are wanted.” The court made no reference to the Fourth Amendment, only to the common law of subpoenas.

No argument was made concerning privilege per se, and thus the court did “not consider whether there is any ground to suppose that, in law, the telegraph company occupies a different relation than would be occupied by private persons having custody of the same papers.”

Missouri, 1880

Citing State v. Litchfield in 1880, the Missouri Supreme Court in Ex parte Brown held that “[t]elegraphic messages are not privileged communications.” Echoing Litchfield, the court added, “There is no statute of this State or principle of law which places a telegram on a different ground from that which any other communication occupies, made by one through another, to a third party.”  The court decided that the “only ground … upon which the exemption of telegrams from this process of the court can be placed, is that they are privileged communications, and we cannot declare them to be such in the absence of a statute so providing.”

Additionally, the court acknowledged that telegraph companies are “subjected to a penalty for disclosing the contents of any private dispatch,” but noted that this restriction did not apply “in a judicial proceeding.”

However, unlike others of its contemporary courts, the Missouri Supreme Court went beyond a discussion of privilege, and examined the possibility that the Fourth Amendment (or, rather, the state equivalent) might indeed protect telegraphic communications, at least inasmuch as to require that the messaged to be produced must be “described with sufficient accuracy.” Before proceeding with this analysis, the Missouri Supreme Court rejected the lower court ruling that the analysis under the state equivalent of the Fourth Amendment “has but little bearing on the present question.”

Instead, the Missouri Supreme Court held that the order to produce the telegrams was overly broad, and did not meet the requirements of the state equivalent of the Fourth Amendment. As part of this holding, they rejected Babcock, and required a higher standard of specificity than that lower federal court. The logic of their arguments is quite similar to those of the the 1878 United States Supreme Court decision when it protected postal mail in Ex parte Jackson (although the Missouri Supreme Court did not cite to Jackson, although the petitioner did). In the end, then, they quashed the subpoena.

Federal Court, New York, 1883

In the 1883 case of Wertheim, a federal court in New York agreed with Ex parte Brown’s approach to privilege when it summarized the law as follows:

On the ground of privileged communications it has been attempted by the officers of telegraph companies to withhold copies of dispatches in their hands when required as evidence in courts of justice. This attempt, however, has not succeeded. It is held that telegraph messages in the hands of officers of the company are not privileged communications; and they must be produced when ordered by a subpoena duces tecum, any rule or by-law of the corporation to the contrary notwithstanding.

The federal court made no reference to the Fourth Amendment. It explicitly followed Babcock in allowing broad subpoenas, provided they met certain limited standards of minimal specificity.

A Treatise on Telegraph Law, 1920

By 1920, the question on privilege appeared firmly settled, and the Missouri Supreme Court’s arguments regarding search and seizure seemed essentially lost:

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)

Related articles

• An argument for the “Inviolability of Telegraphic Correspondence” (inpropriapersona.com)
• The Fourth Amendment: from property to people (inpropriapersona.com)

Image by krisnelson via Flickr

In 1886, the Supreme Court in Boyd v. United States held that compelling production of business records as part of a customs proceeding violated the Fourth Amendment’s protections against unreasonable searches and seizure (and the Fifth’s, against self incrimination). A later ruling, Gouled v. United States (1921), solidified the “mere evidence” rule, forbidding warrants to search for documents that were themselves not “instrumentalities” or contraband. The rule, based on common-law principled discussed in Entick, lasted well into the twentieth century before being abandoned:

Purely evidentiary (but “nontestimonial”) materials, as well as contraband and fruits and instrumentalities of crime, may now be searched for and seized under proper circumstances. (See Warden v. Hayden, 1967).

Business and computer records, whether on paper or not, are seizable, even if they themselves are not illegal. Antonin Scalia, a strong proponent of originalist understandings of the Constitution, has been supportive a flexible interpretation of the Fourth Amendment–but what if Boyd was right?

If it should turn out that Boyd v. United States correctly read the original understanding, originalist justices would be required to rethink a hugely important body of modern law–the one authorizing seizure or subpoena of business records, including computer records. (See Reconstructing the Fourth Amendment: A History of Search and Seizure)

The goal of the “mere evidence” rule was to protect privacy, and was based on property rights–the government had right to contraband or stolen property, but not to an individuals private papers:

[O]ne primary purpose was to protect the citizen’s privacy. Entick repeatedly excoriated the violation of privacy involved in examining a person’s secret papers. Boyd stressed that the principles of Entick were designed to protect the “privacies of life.” In Zurcher v. United States, Justice Stevens stated, “[t]he practical effect of the rule prohibiting the issuance of warrants to search for mere evidence was to narrowly limit … the character of the privacy interests that might be affected by an unannounced police search.” In short, although the scope of the mere evidence rule was defined in terms drawn from property law, a major purpose of the rule was to protect personal privacy by limiting the government’s authority to search. (Russell W. Galloway, Jr., The Intruding Eye: A Status Report on the Constitutional Ban against Paper Searches, 1982)

The Supreme Court in the 1960s moved away from this property-based understanding of the Fourth Amendment in cases like Katz and Hayden to one focused on people. This shift had the twin effects of granting Fourth Amendment protections to telephone conversations while also opening up the seizure of “mere evidence.”

Since I am currently research telegrams and the Fourth Amendment, I have to wonder why they did not receive this protection. After all, since telegrams were generally seized as evidence to prove a crime (and not as illegal items themselves), they clearly fall in the category of “mere evidence.” So why are there examples of their seizure contrary to this understanding? Why were other kinds of papers protected from seizure by the rule, while telegrams were not? Why did postal mail receive exactly this explicit protection in Boyd, but no court did the same for telegrams?

Related articles

• The Fourth Amendment: from property to people (inpropriapersona.com)
• An argument for the “Inviolability of Telegraphic Correspondence” (inpropriapersona.com)

Cooley’s “Inviolability of Telegraphic Correspondence” advocated for protecting correspondence sent via this relatively new technology from “unreasonable searches and seizures.” As support, Cooley turned first to the influential English case of Entick v. Carrington, in which English government agents entered a private domicile and seized private papers.  Cooley writes:

The case [Entick], as will be seen, did not by any means turn wholly upon the breaking into the tenement and the forcing of locks, but it brought to the front as a principal grievance the injury the subject might sustain by the exposure of his private papers to the scrutiny and misconception of strangers.

The key for Cooley–unlike some other commentators–was the “exposure of … private papers to the scrutiny and misconception of strangers.” For Cooley, telegrams are exactly the same as private papers, and should be available for use as evidence only in regards to the telegraph company (which has a “qualified property interest in them”), the sender, and the receiver. He analogized telegrams to postal mail, where “every invasion of it [the post] has been punishable” (though the Supreme Court only explicitly gave Fourth Amendment protection to postal mail the year before Cooley’s article, it did so based on a long-standing understanding that postal mail ought to be inviolable).

Image by Dan Coulter via Flickr

Telegraphic communications were protected to some degree by state law, but above all by company regulations (i.e., essentially contract law) formulated to encourage citizens to entrust their correspondence to the telegraph company:

For the most part telegraph companies were left to make rules and regulations to govern their own business. … The most important regulation which has been established by statute is that inviolable secrecy shall be preserved in respect to messages by those through whose hands they shall pass; severe penalties being imposed upon operators who violate this injunction.

Cooley wished to extend constitutional protection to telegrams, “by those maxims of the common law by which individual liberty is guarded and protected.” But he found no “express provision of the Constitution” by which to do this, although he uses the language of the Fourth Amendment, and looked instead to “previous history in the light of which constitutions must be interpreted.”

Despite relying on Entick, which dealt with an agent of the state, Cooley, foreshadowing Samuel Warren and Louis Brandeis, is less concerned with state surveillance than he is with private abuses. Cooley frames his worries in terms of protection against “competitors and gossips”:

Telegraphic communication, if not inviolable, offers a perpetual temptation to malice. A legislative committee may employ the power of calling for it to blacken the reputation of an opponent; a business rival may be annoyed and perhaps seriously compromised by means of it; a family feud may be avenged or quickened by bringing out confidential messages, and so on.

In this sense, Cooley’s approach, while suggestive of 20th century extensions of the Fourth Amendment, reflects 19th century concerns. Communication was becoming more rapid, and newspapers–along with gossip columns–were booming. The federal government had limited powers, and modern police forces were only just developing.

Image via Wikipedia

Despite similarities, Cooley’s view is distinct from Warren and Brandeis’. As Neil Richards and Daniel Solove, in “Privacy’s Other Path: Recovering the Law of Confidentiality” suggest about Americans pre-1890, what Cooley seemed more concerned with was the confidentiality of material entrusted for transit between people, not with the secrecy accorded to private materials intended for one’s own use. Cooley was concerned with the revelation of private correspondence, not with protecting the sanctity of the individual (in contrast to Warren and Brandeis). Cooley argued against

the right to compel the telegraph authorities to produce private messages which, by the course of the business are necessarily left in their possession, but under a confidence imposed by the law [or by company regulation].

Cooley’s ideas, though still clearly enmeshed in 19th century concerns, prefigure 20th century understandings of the Fourth Amendment. Cooley, for example, believes that it should make no difference where the private correspondence was stored–the potential damage and exposure are equal:

If one’s private correspondence is to be given to the public, the method is not important; it is equally injurious whether done by sending an officer to force locks and take it, or by compelling the person having the custody to produce it.

In short, argues Cooley, what is the difference between papers stored in the home and correspondence held at a telegraph office? This idea is not dissimilar to the majority opinion in Katz v. United States that the “Fourth Amendment protects people, not places.” In Cooley’s view, if a person’s correspondence is open to seizure in a telegraph office, then why should it be more protected in his home?

And if a search in a telegraph office and a seizure of a man’s private correspondence is not an unreasonable search and seizure, on what reasons could the search for and exposure of his private journals be held to be an invasion of his constitutional right?

Related articles

• The Fourth Amendment: from property to people (inpropriapersona.com)
• Law of privacy vs. confidentiality in the nineteenth century (inpropriapersona.com)
• Extending the Fourth Amendment beyond the home: Ex parte Jackson (1878) (inpropriapersona.com)

Image by plenty.r. via Flickr

In Protections for Electronic Communications: the Stored Communications Act and the Fourth Amendment, Alexander Scolnik wrote:

As technology evolves, giving individuals new forms of communicating and government agents increasingly sophisticated tools for surveillance, courts have had to continually interpret the Fourth Amendment and define the extent of its reach in light of these new advances.

He also noted that even Justice Antonin Scalia, who tends to like strict originalist interpretations, has suggested that the Fourth Amendment requires flexible interpretation.

There have been several extensions of the Fourth Amendment to deal with new technologies, but Constitutional protections have not come quickly.

First, the postal service: Established by Benjamin Franklin in 1775, official postal mail did not receive Fourth Amendment protection until ex parte Jackson in 1878, more than a hundred years later.

Second, the telegraph: In 1844, Samuel Morse transmitted the America’s first telegram (“What hath God wrought”), but despite arguments that telegrams deserved protection (see, for example, Thomas M. Cooley’s 1879 Inviolability of Telegraphic Correspondence ) the courts have never explicitly granted such protection to telegrams. In essence, technology (in the form of the telephone) made the legal issue moot.

Third, the telephone: Alexander Graham Bell obtained a patent in 1876 on “an apparatus for transmitting vocal or other sounds telegraphically.” In Olmstead (1928), the Court refused to extend Fourth Amendment protections to the telephone, then changed its mind in 1967, nearly a century after Bell’s patent.

Fourth, electronic mail: SDC and MIT had an early form of email in 1965, with the “@” sign being added to ARPANET’s early system around 1969. Forty-some years later, the Sixth Circuit, in Warshak, has suggested that stored email has Fourth Amendment protections, but the Supreme Court has yet to rule.

So, yes, courts have continually interpreted/extended the Fourth Amendment, but it hasn’t been quick!

Related articles

• The Fourth Amendment: from property to people (inpropriapersona.com)

For the Fourth Amendment–the prohibition against unreasonable search and seizure–one of these foundational cases was Entick v. Carrington (1765). In Entick, agents of the King and acting under the orders of Lord Halifax, broke into the private residence of John Entick and seized his private papers.

Image via Wikipedia

In broadest terms, Lord Camden, author of the final opinion, ruled “that the state may do nothing but that which is expressly authorised by law, while the individual may do anything but that which is forbidden by law.” In these broad terms, then, the case established a core principle in English and then American law that limited the breadth of executive power.

In terms specific to what would become the Fourth Amendment, the case emphasized the importance of a specific legal authorization (today we know this as a warrant, but that term has not always meant what it does today) to excuse the invasion of private property by government agents. Striking, and of key importance to Fourth Amendment jurisprudence all the way up to Katz v. United States at least, is the focus on trespass and private property. Warrants were considered required to search a person’s home (or other physical space, like an office), but there was really not much thought given to papers or materials searched outside “the sanctity of a man’s home.”

In 1877, ex parte Jackson extended the requirement of a “warrant, issued upon oath or affirmation” to the postal mail. Justice Field wrote:

Letters and sealed packages of this kind in the mail are as fully guarded from examination and inspection, except as to their outward form and weight, as if they were retained by the parties forwarding them in their own domiciles. The constitutional guaranty of the right of the people to be secure in their papers against unreasonable searches and seizures extends to their papers, thus closed against inspection, wherever they may be.

In other words, the court built upon protections against unreasonable searches and seizures “in their own domiciles” to papers in transit through the postal system.

The 1886 case of Boyd v. United States continued to extend Fourth Amendment protections beyond searching someone’s home (or similar private property). Looking to both the Fourth and Fifth Amendments, the Supreme Court in Boyd struck down an attempt for force a defendant to produce private papers for inspection. In his opinion, Justice Bradley wrote:

It is not the breaking of his doors and the rummaging of his drawers that constitutes the essence of the offense; but it is the invasion of his indefeasible right of personal security, personal liberty, and private property … which underlies and constitutes the essence of Lord Camden’s judgment.

Clearly, the focus on property is still present in both, but in Boyd, the Court did recognize the importance of “personal security” and “personal liberty,” instead of focusing on trespass onto real property. Similarly, in ex parte Jackson, the Court protected private papers in transit outside the home, with no almost no regard to trespass at all. Both cases did not involve physical trespass by government agents into a person’s home, but rather focused protection on “papers” as an extension of personal liberty, and not on the “sanctity of the home.”

Image by nizger via Flickr

Olmstead v. United States (1928) refused to continue this extension to wiretaps that occurred “without trespass upon any property of the defendants.” The Court goes on to argue that the Fourth Amendment only protects physical things:

The Amendment itself shows that the search is to be of material things–the person, the house, his papers or his effects. The description of the warrant necessary to make the proceeding lawful, is that it must specify the place to be searched and the person or things to be seized.

In short, Justice Taft says,

The Amendment does not forbid what was done here [a wiretap]. There was no searching. There was no seizure. The evidence was secured by the use of the sense of hearing and that only. There was no entry of the houses or offices of the defendants.

It was not until Katz in 1965 that the Supreme Court returned to the tradition of ex Parte Jackson and held that “the Fourth Amendment protects people, not places,” and laid the groundwork for warrant requirements to tap telephone lines and, later, to seize emails or monitor Internet traffic.

Related articles

• Constitutionalizing the sanctity of the mails (inpropriapersona.com)
• Extending the Fourth Amendment beyond the home: Ex parte Jackson (1878) (inpropriapersona.com)