Were telegrams privileged communications?
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.
The long-forgotten "mere evidence" rule
The “mere evidence” rule, forbidding searches for documents that were themselves not “instrumentalities” crimes (or contraband themselves) lasted well into the twentieth century before being abandoned. So why were telegrams never explicitly covered by the rule?
An argument for the "Inviolability of Telegraphic Correspondence"
Former Michigan Supreme Court Justice Thomas M. Cooley, in a forward-looking article, advocated for extending Fourth Amendment protections to telegrams in 1879. Cooley articulated a position that both foreshadowed 20th century arguments over telephone wiretaps, and reflected his late 19th century concerns.
The slow pace of Fourth Amendment change
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.
The Fourth Amendment: from property to people
For the Fourth Amendment – the prohibition against unreasonable search and seizure – one of these foundational cases was Entick v. Carrington (1765). 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.”
Constitutionalizing the sanctity of the mails
Anuj C. Desai explains that the extension of the Fourth Amendment to cover postal mail, and then later to telephones, is based not so much on the inherently Constitutional nature of opening mail, but instead on the increasingly firm belief in the sanctity of the mail as expressed by Congress, legislators, and the public.
New technologies lead to new constitutional protections
The boom in transportation and communications technologies in the nineteenth century outpaced the pace of legal change. It was only through the emergence of new concerns around both privacy and confidentiality that people themselves began to realize their importance in a way never before imagined.
Law of privacy vs. confidentiality in the nineteenth century
According to Richards and Solove the “right to privacy” as we now understand it actually grew out of an earlier recognition of the right to confidentiality in certain situations. Warren and Brandeis then took this original principle of confidentiality and shifted it to focus on a newly developed right to privacy.
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