Benefits of viewing the right to privacy as a property right
There are many approaches to protecting privacy, but many of them run into conflicts, either with existing protections (perhaps especially the First Amendment) or with those who are suspicious of government regulation. But privacy rights do not necessarily need to be protected in a novel new form as a new right — one could instead leverage existing theories of property to do it.
Privacy as secrecy and privacy as autonomy
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).
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.