She writes, “The general process, of which Ex parte Jackson is an example, can be described briefly in four steps: (1) Congress passes a statute; (2) the statutory provision gives an institution certain attributes; (3) over time, social practice embeds those attributes into the institution; and (4) the courts then take those attributes and write them into constitutional law.”

In other words, the 1878 case of Ex parte Jackson was not based on originalism. It does not appear that the Founders really thought of postal mail–at least, the way it ran at the time–as being protected by the Fourth Amendment, although they did inherit the British sense of the importance of protecting its confidentiality. Desai notes that Professor Telford Taylor explained this when he noted, “It is quite impossible to spell out an original understanding that the mail, or any future means of general communication, were to fall within the ‘persons, houses, papers, and effects’ protected by the fourth amendment.”

To summarize Desai’s argument in more detail: pre–Revolutionary War policies and procedures generally protected the confidentiality of postal mail, but did so in a spotty enough fashion in practice that American colonists saw the importance of greater protections against government spying. Nonetheless, postal mail was not explicitly placed under Fourth Amendment protections, and instead statutory law (and, arguably, custom) protected the confidentiality of the mails.

According to Desai, these statutory protections became so ingrained that, when the federal government finally attempted in the 1870s to routinely censor letters (in the guise of enforcing a prohibition against lotteries), the Supreme Court felt that the importance of protecting the postal system from government search and seizure had finally risen to the level of requiring Constitutional protections. The Supreme Court then enshrined what had been statute and custom into the firmer bedrock of the Constitution.

Related articles

• The telegraph and business invasions of privacy (inpropriapersona.com)
• Law of privacy vs. confidentiality in the nineteenth century (inpropriapersona.com)
• Stepping stone to Internet privacy: the telegraph (inpropriapersona.com)

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.

This case, which dealt with government agents opening mail in search of banned lottery materials, hints at the future Court’s ruling on wiretaps in Katz v. United States that the Fourth Amendment “protects people, not places.”

Interestingly, although the 1878 ruling involved postal mail, it came shortly after a Congressional committee forced (via threat of imprisonment) Western Union officials to turn over numerous telegraphs of private individuals in an effort to resolve a dispute over electoral votes. Telegraph companies had been maintaining for 25 years that the “sanctity of the mails” was paramount, and analogized telegraphic dispatches to postal mail.

Congress passed a resolution in 1880 protecting telegraphic correspondence, but nonetheless allowing itself to have access via its subpoena power without acknowledging the potential Fourth Amendment issues. (Subpoenas do not require judicial approval at issuance, but can be quashed by a later judicial proceeding if they are over-broad or otherwise lack the “reasonableness” required by the Fourth Amendment.) If telegraphs were protected by the Fourth Amendment in the same way as postal letters, then Congressional resolutions or subpoenas would not be sufficient to overcome a judicial challenge, since Congress cannot simply exempt itself from constitutional provisions.

Although not specifically dealing with telegraphs, the Supreme Court did act to check over-broad Congressional investigations in Kilbourn v. Thompson, holding that Congress does not “possess[] the general power of making inquiry into the private affairs of citizens.”

These late nineteenth-century discussions presaged the sharp debates to come later on in the twentieth century, as the American people and the American courts grappled with the question of the status of electronic communications, from telephones to email.

For more discussion of privacy in America and the law, see David Seipp, The Right to Privacy in American History, pp. 47–59(1977–78).

Related articles

• Stepping stone to Internet privacy: the telegraph (inpropriapersona.com)
• Appeals Court Holds that Email Privacy Protected by Fourth Amendment (eff.org)
• Search warrants and online data: Getting real (news.cnet.com)

Latoicha Givens writes:

In the case of RIAA vs. Joel Tenenbaum, the court is currently accepting an argument that peer to peer file sharing is a Fair Use exception to Copyright Infringement Laws. Essentially, the argument is that file sharing is not commercial use and therefore not copyright infringement. In lay terms, this means that as long as individual consumers are sharing files with friends for personal enjoyment and not a monetary fee, then copyright infringement does not exist and file-sharing is not a crime.

via IP LAW 101: File Sharing & Fair Use: What does it mean for Consumers.

She goes through the four main “fair use” factors considered by judges. Stanford’s library has an overview of copyright and fair use which states the four as:

1. 1. the purpose and character of your use
2. 2. the nature of the copyrighted work
3. 3. the amount and substantiality of the portion taken, and
4. 4. the effect of the use upon the potential market.

via Measuring Fair Use: The Four Factors.

She points out that, if this argument is accepted, then at least limited file sharing would become legal:

If Tennebaum’s argument is successful, peer to peer file sharing may be considered legal and enjoy the same treatment as copying of television or cable shows for personal enjoyment. Currently, consumers can copy or record television or cable shows in their home as long as the recording is done for personal enjoyment and the recording is not re-broadcast or viewed by consumers for a fee.

(Of course, if this were to occur, the lobbysts would be hard at work getting Congress to explictely eliminate such protection.)

Keep in mind, too, that although such an outcome might make file sharing acceptable in certain contexts, this would only be from the individual consumer level. Any ads, subscriptions might well take it out of this context. In other words, any money making might well doom a defendant’s fair use argument.

I suspect that even large-scale file sharing without commercial intent might go to item #4 above, too, making Napster or Bittorrent still illegal. Still, it would be an interesting outcome, and one that might well be a good outcome for consumers — and possibly even beneficial to labels, if it helps to advertise their work in non-commercial contexts.

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• Does Copyright Foster or Hinder Innovation? (inpropriapersona.com)
• Copyright as Antidote to DRM (inpropriapersona.com)
• Libraries and Fair Use (inpropriapersona.com)
• The Thomas file-sharing retrial (inpropriapersona.com)

Economists Felix Oberholzer-Gee and Koleman Strumpf have just released a new Harvard Business School working paper called File Sharing and Copyright that raises some important points about file sharing, copyright, and the net benefits to society.

via Michael Geist — Harvard Study Finds Weaker Copyright Protection Has Benefited Society.

Mike Masnick of Techdirt adds:

To understand the key points made by the paper, you need to understand the purpose of copyright — something that many people are confused about. It’s always been about creating incentives to create new works. Copyright maximalists and defenders of strengthening copyright laws always suggest that without copyright, there would be much less creative output, because there would be much less incentive to create. History has shown that to be false. If you look back at the age when all creative output had to be registered to be covered by copyright, studies showed that only a very small fraction of content creators even bothered, because copyright wasn’t the incentive. It’s only now, when copyright is automatic, that people seem to think that copyright is somehow necessary.

via Yet Another Study Shows That Weaker Copyright Benefits Everyone | Techdirt.

There are many who disagree, but the study appears to raise interesting issues regarding the benefit to society of copyright protections. As Mike Masnick writes above, copyright is about balancing benefits (incentives to create with the benefits of distribution). Thus, the United States Constitution, in granting to Congress the power to regulate patents and copyrights, says that the point is to

To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.

In other words, although we consider copyrights and patents to be property, it is property that functions differently than many conceptualize. It explicitly lasts “for limited times,” for example (although other forms of property also may be limited — law students learn early on that property is a “bundle of rights,” not some kind of absolute grant).

I am not convinced that eliminating copyright is the best approach, even if this study suggests that file sharing may actually benefit creators. Instead, I think perhaps a better balance of rights may be appropriate, and may even benefit creators (musicians, authors, etc.) over the current regime, which tends to benefit current owners of intellectual property (labels, publishers, etc.). But I remain open to exactly what that balance should look like, and studies like this help to provide evidence for which approaches might be better than others.