Wiretapping before the wires: the post office and the birth of communications privacy.

• Author: Desai, Anuj C.

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.

1. 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...