Extending the Fourth Amendment beyond the home: Ex parte Jackson (1878)

Please note that this post is from 2011. Evaluate with care and in light of later events.

In 1878, the Supreme Court held in Ex parte Jackson:

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)