Democracy and the privacy of communications (1967)

By Kristopher A. Nelson
in June 2018

400 words / 2 min.
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In 1967, President Johnson’s Crime Commission investigated electronic surveillance and concluded that the state of the law was “intolerable.”

Please note that this post is from 2018. Evaluate with care and in light of later events.

In the year before the Supreme Court decided Katz and Berger, President Lyndon B. Johnson’s Crime Commission concluded:

The present status of the law with respect to wiretaps and bugging is intolerable. It serves the interests neither of privacy nor of law enforcement.1

But why does informational privacy matter? Why not simply revise the law to favor law enforcement? In terms reflect the classic “marketplace of ideas” justifications of the First Amendment, the Commission explained the importance of privacy to democracy:

In a democratic society privacy of communication is essential if citizens are to think and act creatively and constructively. Fear or suspicion that one’s speech is being monitored by a stranger, even without the reality of such activity, can have a seriously inhibiting effect upon the willingness to voice critical and constructive ideas. When dissent from the popular view is discouraged, intellectual controversy is smothered, the process for testing new concepts and ideas is hindered and desireable change is slowed. External restraints, of which electronic surveillance is but one possibility, are thus repugnant to citizens of such a society.2

Whether this democratic justification for broadly unconstrained speech still fully holds when “fake news” and hate speech play an unsettling role in the public sphere—as many believe it does in 2018—is a matter of active debate.

Relatedly, concerns about government monitoring and invasions of private communications (perhaps in the guise of chasing “leaks” to the press), and the potential of such interference to inhibit “desireable change,” is also a live and concerning issue in 2018.

Given issues like these, is the Crime Commission’s 1967 justification for communications privacy a hopelessly outdated and even naïve one in 2018?

  1. The Challenge of Crime in a Free Society: A Report by the President’s Commission on Law Enforcement and Administration of Justice (Washington, D.C.: U.S. Govt. Print. Off., 1967): 203.
  2. Ibid., 202.