The “third-party problem”: one reason telegrams were not constitutionally protected

Unlike postal mail or, later, the telephone, telegrams never received constitutional protection. Yet they were the quintessential nineteenth-century technology of communication, used extensively for business, government, and personal communication, much of which both senders and receivers would have wished to keep to themselves.

The slow pace of Fourth Amendment change

In Protections for Electronic Communications: the Stored Communications Act and the Fourth Amendment, Alexander Scolnik wrote:

As technology evolves, giving individuals new forms of communicating and government agents increasingly sophisticated tools for surveillance, courts have had to continually interpret the Fourth Amendment and define the extent of its reach in light of these new advances.

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.

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