A Short History of Privacy : What everyone needs to know in 10 minutes Part III - Telephony [Issue]
Introduction:
This post is the 3rd instalment in a series on privacy law as it pertains to communications. This part will cover the telephone from its beginning in 1876 to the Omnibus Crime and Control Act of 1968, which significantly strengthened the protections for privacy from wiretapping on the phone system. As in my 1st post on mail and telegrams, the Federal Government is slow to react and not willing to see the similarities of the present technologies the new one and extend the appropriate protections to the new technology by analogy.
A (very) Short History of Privacy (as it applies to telephony):
In 1876, the telephone was patented and shortly after the deployment of the first telephone systems wiretapping methods quickly became available, just as with the telegraph. Also, as seen before with the telegraph, the states were quicker to defend the privacy of the telephone both with legislation and in the courts, than the Federal Government was. In fact, on the federal level it was not until 1928 that the Supreme Court in Olmstead v. U.S. took any action to address telephone privacy. The Court decided that the 4th Amendment requirement of a warrant before law enforcement could deploy wiretapping equipment on a telephone system did NOT exist. They found that the 4th Amendment did not include wiretapping because wire tapping occurred outside the home without trespass nor seizure.
In 1934, Congress passed the Federal Communications Act. Section 605 of this Act prevented any person not authorized by the sender to intercept and divulge any telephone communications. Unfortunately, any person applied only to federal officials and was not a prohibition of wiretapping, only on wiretapping AND divulging. So wiretapping evidence without a warrant was not allowed in court but still could be used to target individuals for more scrutiny and guide investigations.
The next major mile stone was not until 1967, when the Supreme Court overturned Olmstead v. U.S. in Katz v. U.S. In Katz v. U.S. the Court moved away from the notion of 'your home is your castle' and moved more towards the civil law idea of Warren and Brandeis, where the individual decides what is private for himself. Their decision was as follows, “What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.” From this, the current test for determining 4th Amendment applicability as stated by Justice Harlan became:
- (1) a person exhibits an “actual or subjective expectation of privacy” and
- (2) “the expectation is one that society is prepared to recognize as ‘reasonable'.
(Note: the concepts of Warren and Brandeis was covered in Part II. Link in Reference section.)
The next wiretapping legislation was Title III of the Omnibus Crime and Control Act of 1968 which greatly increased the statutory protections against wire tapping of section 605 to state officials and individuals. Its major limitation was that it only applied to the interception of “aural” communications and not to visual surveillance nor other forms of electronic communication.
Conclusion:
I am going to close this post here at 1968. This post includes all the pure telephone legislation and court cases. From here on out telephone related legislation and decisions are tied up in 3rd party data base and stored information issues. This is because while the content of a telephone communication is protected, the list of numbers called by an individual maintained by the phone company is not because it is held by the phone company, a 3rd party.
Once again we see the protection afforded to the telephone by the Federal Government was slow to materialize. The court took 52 years from the conception of the phone to even address the issue of phone privacy in Olmstead and their first decision was in my opinion, wrong. They ignored the spirit of the law and only focused on the literal word of the law. Specifically the 4th amendment. Mail is protected under the 4th, as being papers even though it is outside the home. Mail is fundamentally a thought it in written form. So, fundamentally , thoughts are protected under the 4th amendment, not only within the home but also outside the home when in the possession of a 3rd party who is charged with the task of transporting it to someone else. So if a recorded thought being transmitted long distances is protected as mail, then why should not a thought in the form potentially audible electronic impulses be protected? Furthermore, this happened 38 years after Warren and Brandeis' paper, “The Right to Privacy”. Not only did they miss the analogy link between the telephone and mail but they missed the connection with the new tort based privacy law where the people have the right to determine who gets to receive their communications and who does not.
Six years after this decision, the Federal Communications Act of 1934 moved to partially protect against wiretapping. It was in the right direction but was not enough in that it did not forbid wiretapping outright and it only applied to federal agents. Furthermore, it took 58 years after the telephone was invented for this small protection to materialize.
Finally in 1967, a staggering 91 years after the invention of the telephone and 39 years after the court's first ruling on telephone privacy, the court ruled on Katz v. United States. This time the result provided a reasonable amount of protection for the public against telephone wiretapping by shifting the principles by which privacy is established to the concept that the individual gets to chose what is considered private.
A year later in, The Omnibus Crime and Control Act of 1968, Congress finally created adequate protection for audio communications by prohibiting everyone from engaging in wiretapping, not just federal agents. It only took 92 years to happen.
Overall, the protections for telephone communications are pretty good where the actual audio signal is concerned. The problem was the speed with which anything was accomplished. Especially when you consider that the phone is today a dying technology as the telephone is being replaced with other audio technologies such as Internet phones and voice chat clients. Along with the telephone, the telephone privacy protections are also dying. Wiretapping an Internet phone may not be considered an illegal act under this law because the courts may not recognize the two technologies as the same. Therefore, of the 141 year life span of the telephone, only 49 years or roughly a third of it was protected.
Note:
I have tried to include every case or piece of legislation that has had a significant impact on communications privacy up to this point. If anyone knows anything that I overlooked please let me know. The rest of this story is coming soon.
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References:
This reference is a great overview of privacy law history in general:
Daniel J. Solove, A Brief History of Information Privacy Law in PROSKAUER ON PRIVACY, PLI (2006) http://scholarship.law.gwu.edu/cgi/viewcontent.cgi?article=2076&context=faculty_publications
This reference is on the tort basis of privacy law:
Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 HARV. L. REV. 193 (1890)
Here is my post on Warren and Brandeis' paper.
https://steemit.com/privacy/@voice-of-reason/a-short-history-of-privacy-what-everyone-needs-to-know-in-10-minutes-part-ii-shift-in-principles-issue