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COPYRIGHT 2007 Stanford Law School
INTRODUCTION
I. EMBEDDING COMMUNICATIONS PRIVACY INTO THE AMERICAN POST OFFICE A. Communications Privacy in the British Post Office B. Communications Privacy in the American Post Office II. THE CONSTITUTIONALIZATION OF COMMUNICATIONS PRIVACY: EX PARTE JACKSON AND THE POSTAL NETWORK A. Ex parte Jackson's First Amendment Holding B. Ex parte Jackson and the Fourth Amendment C. Telegraph Privacy in the Ex parte Jackson Era III. INSTITUTIONAL EMBEDDEDNESS AND CONSTITUTIONAL THEORY CONCLUSION
INTRODUCTION
In December 2005, the New York Times reported that the National Security Agency (NSA) had been engaged in warrantless surveillance of international communications--telephone calls, e-mails, etc.--made from within the United States. (1) The ensuing outrage included several lawsuits claiming that the government and various telecommunications companies had violated a host of statutes, particularly the Foreign Intelligence Surveillance Act (FISA), which establishes specific procedures for the government to follow prior to engaging in domestic surveillance for intelligence purposes. (2) At the same time, a few of the lawsuits and some commentators went even further, alleging that the NSA surveillance program violated the Fourth Amendment, in essence arguing that even Congress could not authorize such surveillance. (3) In August 2006, a federal district judge in Detroit agreed. (4) One of the unstated premises of the court's holding was that the Fourth Amendment protects the privacy of longdistance communications transmitted through a communications network, a premise that was unequivocally correct as a matter of current Fourth Amendment doctrine. (5)
How is it, though, that the Fourth Amendment came to protect communications privacy? (6) 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. (7) Plausible, but not exactly compelling. (8) As I will describe in greater detail below, 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 a communications network. That 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 York (9) and Katz v. United States. (10) 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. (11) 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, 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 lottery advertisements through the mail, and in dicta, the Supreme Court ruled that the Fourth Amendment precluded the government from opening sealed letters without a warrant.
In this Article, I will explain how 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. Though we often view constitutional law as the application of abstract principles to specific facts, the constitutional principle of communications privacy initially grew out of a particular institutional context; the constitutional principle was simply the affirmation of long-standing law and custom in the post office. Thus, as a historical matter, it was the post office--not the Fourth Amendment of its own independent force--that originally gave us the notion of communications privacy that we now view as an abstract constitutional principle applicable to telephone conversations, e-mails, and the like. (12)
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 law doctrine that was built around the post office. (13) Second, and perhaps more intriguingly, it demonstrates that constitutional law can follow, rather than undermine, legislative choices. What Ex parte Jackson effectively 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; and (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 confirmation of choices made by an earlier legislature, with the institution--and the passage of time--serving as a mediating force between the legislature and the courts. In short, 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. Let me emphasize that my point is descriptive, not normative. I am making a claim about the historical origins of a doctrine, not about the appropriate role of courts in establishing that doctrine.
To explain this process in more detail, I will proceed in three parts. In Part I, I will describe the way in which communications privacy was intertwined with the early history of the post office and how the Second Congress eventually came to write the principle of communications privacy into legislation in the 1792 Post Office Act. Key to this Part is the fact that Congress put this principle into a statute, not into the Constitution.
In Part II, I will describe the 1878 case Ex parte Jackson and then explain how it effectively constitutionalized that principle. I will then compare postal privacy with the contemporaneous history of privacy in telegrams. Looking at this comparison will be the easiest way to see how the process of constitutionalization was limited solely to the particular context of the unique communications medium that was the post office. The constitutional principle was not rooted in the Fourth Amendment in abstract, textual, or even historical terms; rather, it was a principle deeply embedded in the history of the post office.
Finally, in Part III, I briefly sketch some theoretical implications this example has for constitutional law scholarship. My principal point--which is purely descriptive--is that courts draw upon constitutional values that reside within institutions, and that it can be legislatures, not courts, that put those values there in the first place.
I. EMBEDDING COMMUNICATIONS PRIVACY INTO THE AMERICAN POST OFFICE
Current Fourth Amendment doctrine regulates the surveillance and interception of all forms of electronic communications. That doctrine is commonly viewed as deriving from Justice Brandeis's seminal dissent in the 1928 case Olmstead v. United States. (14) But the origins of Fourth Amendment protection for communications privacy began long before 1928; they began with the development of a communications network, the post office. By looking closely at the history of the American post office and the ways in which privacy of correspondence was intertwined with the post office's development, we can see the important role postal policy played in modern Fourth Amendment law.
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. In this Part, I will explain that transformation. In Subpart A, I describe the status of privacy of correspondence in Britain. In Subpart B, I turn to the way in which notions of communications privacy became embedded, both legally and in practice, into the American post office. 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.
For my purposes, however, what is most important about the way in which this happened is that the principle of communications privacy was not part of the Fourth Amendment or even the Constitution at all. Rather, the early American policymakers simply placed that important principle into the laws regulating the postal service. It was only a century later, as I explain in Part II, that the Fourth Amendment was interpreted in such a way as to include that principle.
A. Communications Privacy in the British Post Office
During the eighteenth century, the British post office was very much an arm of the Crown. The king controlled all departments of the British government, "either through the ministers in charge or the secretaries of state who transmitted his formal commands." (15) The post office was managed by the Treasury Board; despite this connection to the Treasury, however, the post office was not simply a revenue-raising department. It was also an "intelligence organ, serving as the government's ... eyes[] and ears." (16) In this sense, it was very much the locus of the activities we in the United States now associate with the Central Intelligence Agency and National Security Agency.
The role of the British post office as an "intelligence organ," as the government's "eyes and ears," remained crucial to the British government throughout the eighteenth century and well into the nineteenth. Post office staff collected and reported "all material transactions and remarkable occurrences" to their superiors, and post office officials were thus government intelligence agents. (17)
More important for my present purposes, the post office maintained a "Secret Office" until 1845. (18) Through the "Secret Office," the British post office "created intelligence by opening, detaining, or copying correspondence, and sending 'interceptions' to the Secretaries of State." (19) The practice of surveillance dated back to the sixteenth century and was premised on royal prerogative. Though legally a warrant was required after the Restoration, (20) as a practical matter, the number of officials who actually exercised surveillance powers increased through the eighteenth century. Starting in 1714, the Hanoverian Secretaries of State would simply issue long lists of individuals whose mail was to be inspected, and "[i]n 1765, the lists of foreign diplomats were replaced by a new general warrant ... ordering the copying of all diplomatic correspondence through London." (21) As a matter of custom, the Under Secretaries of State would regularly give informal orders to open and read the correspondence of opposition leaders. (22) Perhaps more importantly, "[a] single warrant might list more than a hundred names, or it might direct the post office clerks to open the letters not only of a named individual but also of his or her associates." (23) Because the warrants themselves were secret, and because those with the power to issue the warrants likely did not want the public to know the extent of the practice, the relevant documents were often destroyed. (24) As one of the leading historians of the British post office has put it, "secrecy made legality unimportant." (25) Or, as another British historian has written, because so much has likely been destroyed, the post office's "role in generating intelligence [must be] illustrated rather than assessed." (26)
One thing that does appear to be clear is that the "typical government use of post office surveillance was in order to gain intelligence of conspiracies." (27) The term "conspiracies" was broad, however, as it even included a warrant granted to a father permitting his eldest son to open letters from his youngest son so that the father could foil a plan the younger son may have had to marry a woman against the father's wishes. (28)
Interestingly, one exception to this general rule that gathering intelligence of "conspiracies" motivated government surveillance occurred in the context of the American Revolution. After news of the Battle of Lexington and Concord reached London in June 1775, Lord Dartmouth, then the American Secretary, ordered the opening of all mail from America to England with the purpose of gauging public opinion. Somewhat sympathetic to some of the American demands and wanting to avoid an all-out war, Lord Dartmouth wanted to open the mail for the purpose of determining how widespread support for the American cause was. (29) As I will explain in the next subsection, Lord Dartmouth's surveillance was just a tiny part of a far deeper connection between postal privacy and the American Revolution.
B. Communications Privacy in the American Post Office
The colonial post office in America was part of the same administrative structure as the English post office; postal communications were thus theoretically subject to the same legal rules. In the early seventeenth century, conveyance of letters in America was largely a private affair, and "[w]hen friends carried the mail the privacy of the contents was normally assured." (30) But "friends" rarely made the trip back to England and so things were quite different for overseas mail when the first mailmen began providing delivery services later in the seventeenth century. For overseas delivery, the only "mailbox" was usually a mailbag hung in a tavern, where anyone could rifle through the outgoing mail. Similarly, when mail arrived from abroad, it would simply be "dumped upon a table in a tavern house and thumbed through by the inhabitants." (31) This was in an era long before the envelope, and though many letter writers did use wax to seal their letters, the seals often fell apart during transit and in any case could easily be broken. Other techniques for preserving the privacy of a letter's contents were used, including the wrapping of an extra blank sheet around the letter to prevent reading through the paper and the use of secret code (including, for example, writing in Latin). (32) In modem parlance, we might refer to these as technological protection measures (33)--hardly quantum cryptography but certainly technological means for achieving the same end.
Though government surveillance certainly occurred during the seventeenth century, it is probably the case that people had some expectations that letters would be kept private. (34) Historian David Flaherty gives the example of Plymouth Colony Governor Bradford's opening of the mail of the colony's first minister, Reverend Mr. Lyford, because of suspicion that Lyford was planning a plot against the Pilgrim church. After doing so, Bradford explained to the colonists why he did what he did. Though Bradford did obviously believe that "security outranked privacy as a value under such circumstances," Flaherty argues that the fact that Bradford felt the need to explain his actions "suggests an obvious assumption by the populace that the mails should [ordinarily] be private." (35)
By early in the eighteenth century, merchants and traders increasingly needed greater security for their "'[c]orrespondencies [sic] and secrets'" from those who would "board[] newly arrived ships and claim[] letters that were not addressed to them." (36) This need was part of what spurred the establishment of the more formal post offices in America. By 1715, when a regular service had (37) most letter been established, with weekly service for most major towns, writers had abandoned the private carriers. (38) As I noted earlier, British law formally prohibited the "open[ing], detain[ing], or delay[ing]" of the mail in the absence of a warrant, and this applied to the colonial post as well. (39) There are, however, no reports of anyone actually being fined under this provision.
When William Hunter and Benjamin Franklin became deputy postmasters general for the colonies in the 1750s, among the regulations they promulgated was a requirement that all postmasters and associates had to subscribe to an oath that they would not tamper with the mail. (40) They were also required to establish an "Office" at "a Place to be set apart for that Purpose ... and not to suffer the Letters to lie open in any Place." (41) The oath included the following: "I A. B. do swear, That I will not wittingly, willingly, or knowingly open ... or cause, procure, permit, or suffer to be opened ... any Letter or Letters ... which shall come into my Hands, Power, or Custody, by Reason of my Employment in or relating to the Post Office; except.., by an express Warrant in Writing under the Hand of one of the principal Secretaries of State for that purpose." (42) Yet, this was the same oath required by postal clerks in Britain under the Post Office Act of 1711, and there is little evidence that the security of the mail was any better in the colonies than it was in Britain. (43)
Indeed, by the early 1770s, when revolutionary tensions had increased, those opposed to the British Post Office recognized that the ability to intercept and open correspondence brought with it the concomitant power to determine who was a "traitor" to the British. This was of particular concern for sealed correspondence, which was the principal means by which the rebels communicated with those from other colonies. Loyalist postmasters would intercept and destroy materials they viewed as seditious.
When establishing the American post office, known in its early days as the "constitutional post," the rebels recognized the need for a conduit for both public (newspapers) and private (letters) correspondence and the need for both types of communication to be free from British control. William Goddard, a newspaperman whose independent, private postal network became the backbone of the American post office, (44) gave the insecurity of correspondence as one of his principal attacks on the British post office, the so-called "parliamentary post." (45) Indeed, Goddard saw the postal network as a conduit for both one-to-many communication (i.e. newspapers) and one-to-one communication (i.e. letters), and saw British control over the network as a threat to both. In his proposal to establish the "constitutional post," he wrote, "It is not only our letters that are liable to be stopped and opened by a ministerial mandate, and their contents construed into treasonable conspiracies, but our newspapers, those necessary and important alarms in time of publick danger, may be rendered of little consequence for want of circulation." (46) Both types of communication were necessary for liberty; secrecy of private correspondence and widespread distribution of public newspapers both contributed to the goals of the rebels. (47)
In short, by 1773, the Americans clearly worried, and had good reason to worry, that loyalist postmasters would intercept and read their letters, a frightening prospect when much of what they were doing likely constituted treason. (48) Confidentiality of correspondence was thus a significant factor motivating the establishment of the separate "constitutional post." (49)
Goddard established the parallel "constitutional post" during 1774, and in July 1775, the Second Continental Congress adopted Goddard's post. Thus, it is Goddard's post that, strictly speaking, is the predecessor to the U.S. post office. Included among the eight "Model Rules" that Goddard set forth when proposing his postal network was "[t]hat the several mails shall be under lock and key, and liable to the inspection of no person but the respective Postmasters to whom directed, who shall be under oath for the faithful discharge of the trust reposed in them." (50) Though Goddard's principle clearly had its antecedents in Hunter and Franklin's 1753 regulations, which in turn found their basis in the 1711 Post Office Act, it is clear that the very specific concern of those who sought independence motivated their desire for a channel of information that would be both independent of the British "parliamentary post" and would preserve the inviolability of the contents of private communications. In short, the principle of confidentiality of the mail in the American postal network dates back to, and...
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