Posted in Article, Constitution, Fourth Amendment, Privacy, Surveillance
As the new President faces a whole host of civil liberties issues upon taking office, one that looms large is communications privacy. Still unresolved from the previous administration are the legality of President Bush’s so-called Terrorist Surveillance Program (the National Security Agency surveillance program code-named “Stellar Wind” that was first made public by the New York Times in December 2005) and the constitutionality of the Foreign Intelligence Surveillance Act. Rather than address that debate directly, I want to look at a premise that all sides in that debate accept: that the Fourth Amendment to the United States Constitution protects communications privacy.
How is it that the Fourth Amendment came to protect communications privacy? On its face, the language of the Amendment makes no reference to the notion of communications privacy. The textual argument on which the principle is based is the notion that surveillance of communications constitutes a “search” and that the communications themselves—the telephone conversations, e-mails, etc.—constitute “persons, houses, papers, [or] effects” within the meaning of the Fourth Amendment. Plausible, but not exactly compelling. Moreover, the history of the drafting and ratification of the Constitution likewise provides little in the way of support for the notion of communications privacy. Instead, to find the origins of the constitutional principle of communications privacy, we must tap a different historical source, the history of one particular communications network. That communications network, maligned today as a relic from another era, is the post office, the most prominent federal “administrative agency” in the early American republic.
The modern notion that the Fourth Amendment proscribes warrantless “wiretapping”—intercepting a communication while the communication is taking place—stems from the Court’s seminal 1967 decisions Berger v. New York1 and Katz v. United States.2 Most commentators view the intellectual underpinnings of Berger and Katz as being found in Justice Brandeis’s dissent forty years earlier in Olmstead v. United States.3 But Justice Brandeis’s famous dissent in Olmstead had its precursors too, and it is to them that we must look in search of the origins of the constitutional principle of communications privacy.
Crucial among the precedents on which Brandeis relied was the 1878 case Ex parte Jackson,4 the first case in which the Court ruled that the Fourth Amendment preserved a realm of communications privacy from government intrusion. Ex parte Jackson upheld a law that prohibited sending information about lotteries through the mail, and in dicta, the Supreme Court ruled that the Fourth Amendment precluded the government from opening sealed letters without a warrant. But, Ex parte Jackson resulted not from principles embedded in the Fourth Amendment or from an originalist interpretation of the Fourth Amendment or even from existing judicial precedents, but rather from policy choices about the post office a century earlier.
Privacy of correspondence became a central feature of the legal regime that defined the American post office from its beginnings in the late eighteenth century. To understand how that happened requires a look at the transformation of the post office from a British to an American institution. The change was gradual and rooted in historical notions of liberty that had manifested themselves in England from the early days of the English postal service, but those who established the separate American post office during the Revolutionary period recognized the importance of postal privacy—for reasons intimately connected to the Revolutionary War itself—and gave it a strong foundation in the new nation’s legal regime. Following a 1782 Confederation Congress Ordinance, Congress then wrote postal privacy into the first comprehensive postal statute following adoption of the Constitution, the landmark 1792 Post Office Act. Over time, law and custom embedded the notion of privacy of correspondence into the fabric of the post office.
By the time of Ex parte Jackson in 1878, the principle of communications privacy was so well established in the postal network that the Court simply “constitutionalized” it. Perhaps the best way to see that the constitutional “principle” was just an extension of postal policy is to look at the contemporaneous history of privacy of telegrams. In the early days, telegrams needed to be transcribed numerous times by telegraph clerks along the route between sender and recipient. The nature of telegraphic technology thus necessitated that many people other than the intended addressee actually view a telegram’s contents. It is not hard to see, then, why concerns about confidentiality of telegrams could be even greater than that for sealed letters. Yet the telegraph never received the Fourth Amendment protection that the mail received. Indeed, courts at the time explicitly rejected the analogy with the mails, and did so on the specific grounds that there was no federal statute protecting the confidentiality of telegraphic communications.
Moreover, Ex parte Jackson remains important to us today not simply because it established the principle of communications privacy, but also because it shows us two crucial facts about the formation of constitutional law. First, it gives an example of an important constitutional doctrine that was built around the post office, the most prominent federal “administrative agency” of the early Republic. Second, and perhaps more intriguingly, it demonstrates that constitutional law can follow, rather than undermine, legislative choices. What Ex parte Jackson did was to constitutionalize legislation; it took an earlier policy choice and embedded it into the Constitution. But this was not an ordinary policy choice; rather, it was one about the character of a government institution. The general process, of which Ex parte Jackson is an example, can be described briefly in four steps: (1) Congress passes a statute. (2) The statutory provision gives an institution certain attributes. (3) Over time, social practice embeds those attributes into the institution. (4) The courts then take those attributes and write them into constitutional law. The key point is that the Court’s interpretation of the Constitution was simply the affirmation of choices made by an earlier legislature, with the institution serving as a mediating force between the legislature and the courts. By establishing an institution and giving it particular attributes, the drafters of postal statutes helped shape constitutional law long after the promulgation of their statutes.
In sum, the constitutional principle of communications privacy was not rooted in the Fourth Amendment in textual or even historical terms; rather, it was a principle deeply embedded in the history of the post office. While constitutional law and the scholarship it spawns often inhabit the world of abstract principle, it is often real-world institutions that give us those principles. Communications privacy, the basic idea now embedded in the Fourth Amendment that the government should not be permitted to intercept individuals’ communications, began in the United States not as an abstract principle at all, but rather as a response by American rebels during the Revolutionary period to the fear of abuses in a particular institution, the post office. When those rebels set out to establish a post office of their own, they embedded communications privacy into it and did so completely independently of the process that we familiarly associate with constitution-making. Yet, when the Supreme Court dealt with the question of communications privacy as a matter of constitutional law nearly a hundred years later, the institution of the post office had so shaped the Court’s thinking that it saw constitutional principle where only postal policy had been before. So, if today we see the principle of communications privacy as fundamental to the Fourth Amendment, we have early postal policy makers to thank, for it was through the post office, not the Constitution or the Bill of Rights, that the early Americans first established that principle.
Acknowledgments:
Copyright © 2009 Stanford Law Review.
Anuj C. Desai is Assistant Professor of Law, University of Wisconsin Law School.
This Editorial is based on the following full-length Article: Anuj C. Desai, Wiretapping Before the Wires: The Post Office and the Birth of Communications Privacy, 60 STAN. L. REV. 553 (2007). Click Here for the Full Article.