The regulation of surveillance, whether by governments, corporations, or individuals, depends on time and technology. With extraordinary perception, Louis Brandeis wrote in 1928 “Ways may some day be developed by which the Government, without removing papers from secret drawers, can reproduce them in court ...”
That day is today but the change comes about more because we have changed the way we handle our “papers” than from an improvement in techniques for looking into our literal locked drawers.
Today, the drawers of your desk have become the folders on you disk and you are under steady pressure to move them to inexpensive cloud storage. Files in cloud storage can be searched by the government, the company providing the storage, or outright rogues without any need to come near your home or your computer.
What individuals, corporations and governments can do have quickly come to feel they have the right to do. Where once it would have been considered outrageous to require a person to keep his papers on file where the state could peruse them without consulting him, today we hear the suggestion that taking action to protect your information from being searched is a sort of proto-criminal activity.
This photo taken July 27, 2012 shows a mailbox outside a US Post Office in Lawrence, Mich. Credit: AP
Consider privacy of communications in the 19th, 20th and the 21st century.
In the 1800s, mail was the major form of remote communication, and the mail was reasonably private. At a legal level, a warrant was required before a letter could be opened; at a more practical level, a letter might not be easy to find. A lesser legal standard applied to just looking at a letter, recording the address and return address (if there was one), seeing how big it was and perhaps holding it up to the light. Any sort of mail surveillance was more readily applied at the receiver than at the sender. Without any wish to avoid surveillance, the sender of a letter might mail it in a box anywhere on his paths around the city and when a post office received a letter there was nothing close to a guarantee that it could be identified and examined.
What could be inferred from such a “mail cover?” In a correspondence involving fixed locations you might, for example, detect the pattern of an application to college, from just the incoming mail. First catalogs would arrive from a number of schools, then multiple letters from one or two, then an envelope whose weight might indicate whether you have been accepted or not.
Trying to infer the activities of a business traveler was far more challenging. Surveillance of a correspondent in New York might see letters arriving from someone whose return addresses were hotels in the West. Could you even predict the pattern of the travelers’ movements? Probably not. By the time a court order to watch the mail of a guest at the Hotel Central in Milwaukee could be arranged, he would have been long gone.
Mail surveillance was coarse in another respect: it took place on a scale of days to months. As the late 19th century gave way to the 20th, telephone rose to rival the mail as the dominant mode of communication. As a result, the timescale contracted from days and months to minutes and hours but many of the problems remained.
The legal framework eventually assumed a form parallel to that of mail surveillance: listening to a phone call required a court warrant and recording the numbers a phone called became feasible. Tracing calls was very difficult and depended on keeping the caller on the line for many minutes. Surveillance on the phone of a policy bank might allow the police to track our roaming hotel traveler, but probably not in time to catch up with him.
As the telephone gave way to the Internet, we kept the same legal framework: we try to distinguish the externals of communication (now called the metadata) from the contents. For an Internet user browsing the web, however, the distinction has grown thin. Is a click on a link externals or content? It produces a short message whose address, return address, time, and size are traditional externals. What is the content? The page received in response to the click? In most cases, that is open for all to see. The watcher has, therefore learned the contents of the message without ever having to get a warrant for the contents of communications.
Not surprisingly, the government response to this change in reality has been to assert the old external-internal distinction and feast on the new abundance of data that are obtainable with comparatively little legal burden.
If the voice of the people is to be heard, it must demand that we are guaranteed the same degree of privacy we used to enjoy rather than the same legal procedures that used to be employed to protect it.
Feature Image: greenbookblog.org
TheBlaze contributor channel supports an open discourse on a range of views. The opinions expressed in this channel are solely those of each individual author.