New technologies lead to new constitutional protections
By Kristopher A. Nelson
in February 2011
500 words / 3 min. 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.
Note: this post is from 2011. Evaluate with care and in light of later events.
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. Before the mid-nineteenth century, America was rural, and commerce mostly local; confidentiality was maintained through face-to-face communications and trust.
Legal protections in the common law extended only minimally to protect this trust, as evidenced by the adoption of England’s Prince Albert v. Strange in American jurisprudence as well. The sanctity of the mails, too, was thought of in terms of protecting confidentiality through the trust placed in mail carriers and postal workers. At a time of smaller, less organized government, such protections–statutory, regulatory, or at common law–were also perceived in terms of private individuals (e.g., postmasters snooping for gossip), rather than as protections against either government intrusion or corporate malfeasance.
The explosion of long-distance communications and business in the mid-to-late nineteenth century changed this at a fundamental level. A more powerful and organized administrative state–federal and local–began to have the capacity to investigate and control people through their communications. More powerful and monopolistic corporations, along with the growing importance of Wall Street financiers instead of local capital, generated distrust in those entrusted with confidential and private communications.
In 1878, the Supreme Court recognized the potential for abuse by a state grown more powerful, and explicitly extended the Fourth Amendment to the mails. By 1890, Warren and Brandeis reacted to the invasions of mass-market gossips into the world of the privileged by creating a new legal concept: the “right to privacy.” Telegraphs never received such explicit protections despite many attempts, and it was not until 1967 that telephone conversations became protected from government wiretaps, and the status of email is only just being worked out today in cases such as United States v. Warshak (6th Cir., 2010).
Postal technologies steadily increased in professionalism and efficiency beginning at the end of the eighteenth century, but the mail did not receive Fourth Amendment protections until 1878. The telegraph began to change the face of communications in America beginning in the early 1840s, but was superseded by the telephone beginning in the early 1900s, which itself was not constitutionally protected until Katz and Berger in 1967 (though whether it should be or not was extensively debated in 1928 in the Olmstead case). Email began to reshape modern communications in the early 1990s (although it was invented much earlier), and in 2010 is beginning to be seen as falling under constitutional protection, though the Supreme Court has not yet spoken on the issue as yet.
- The telegraph and business invasions of privacy (inpropriapersona.com)
- Stepping stone to Internet privacy: the telegraph (inpropriapersona.com)
- Extending the Fourth Amendment beyond the home: Ex parte Jackson (1878) (inpropriapersona.com)