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Google+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).
search and seizure
Presenting “Privacy & The Telegraph”
A slideshow presentation of my talk on the shifting views on privacy, from the nineteenth century’s focus on property and relationships to the twentieth’s focus on people as having an individual right to privacy.
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 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.
The telegraph and business invasions of privacy
In the late 19th century, many began to see the rise of monopolistic telegraph operators as more of a threat than the government. Against this potential eavesdropper, the Bill of Rights provided no protection.
Stepping stone to Internet privacy: the telegraph
There have been four pivotal technologies that have forced modern American law and society to re-examine its notions of privacy and confidentiality.
Changing technology, changing expectations of privacy
My goal here is to compare and contrast the legal changes that occurred as new technologies–state-run postal services, the telegraph, the telephone, and email, for example–emerged, and through this to seek insight into these larger questions.
FBI "technically violated" wiretap laws for years
FBI general counsel Valerie Caproni said in an interview Monday that the FBI technically violated the Electronic Communications Privacy Act when agents invoked nonexistent emergencies to collect records.
Why can the TSA subpoena bloggers to get at their sources?
The TSA issued a directive aimed at instituting new security measures. After two bloggers published it, the TSA issued subpoenas that sought to compel them to reveal their sources. Why did the TSA think they could do this, and did they have the power to enforce their request?
Lawyers should leave their laptops at home when traveling abroad
There has always been an exception to search and seizure law at border crossings. In theory, this is nothing new — attorneys traveling with confidential paper files could also have them searched. But the ease of carrying vast numbers of confidential documents in electronic form raises the bar on this.
The Exclusionary Rule at Risk
A longstanding part of U.S. law, known as the exclusionary rule, is getting bruised. The rule requires courts to exclude – or throw out – some evidence seized by law enforcement through illegal searches. But a ruling last month by … Continued
Canada judge rules emergency wiretap law unconstitutional
JURIST – Paper Chase: Canada judge rules emergency wiretap law unconstitutional: British Columbia Supreme Court Justice Barry Davies has ruled that Section 184.4 of the Canadian Criminal Code, which allows law enforcement officers to electronically intercept private communications in ‘exceptional … Continued
Does the "Other Party" on a Wiretapped Line Have Any Privacy Rights?
So when the government is targeting a person’s communications, what rights does the person calling — or being called — have? What about if the target is overseas and the “other party” is in the United States? This is an … Continued
