Right to Be Let Alone

Transcription

4. The Right to Be Let Alone: The Rise of Communication Privacy A new mode of obtaining power, of mind over mind, in a quantity hitherto without
example. Jeremy Bentham, Panopticon, or the Inspection House, 1791
In the eighteenth century, the utilitarian English philosopher Jeremy Bentham and his
brother Samuel designed a building in which a small number of observers could monitor
the behavior of large populations of residents, or more properly, inmates. This structure
would be suitable for
punishing the incorrigible, guarding the insane, reforming the vicious,
confining the suspected, employing the idle, maintaining the helpless,
curing the sick, instructing the willing in any branch of industry, or
training the rising race in the path of education, in a word . . . houses of
correction, or work-houses, or manufactories, or hospitals, or schools.
[Bentham 1791, 2-3]
A panopticon, from the Greek ‘all-seeling,’ was an eighteenth-century peep-show device
through which viewers could look at a series of pictures. Bentham used the name for his
structure, and for those who might find the meaning of panopticon obscure, he also
referred to it as an “Inspection House.”
The Panopticon, based on “a new principle of construction applicable to any sort
of establishment, in which persons of any description are to be kept under inspection”
(Bentham 1791, t.p.), is a circular building designed to minimize privacy. The population
to be watched—whether prisoners, workers, patients, or students—lived in cells arrayed
around the outside wall. And a “governor,” or “inspector,” sat in the center in a booth, or
“inspector’s lodge,” unseen by those being observed, but able to see them at any time.
Bentham acknowledged that a guard could not watch every resident at every moment, but
he argued that the knowledge that one could be seen would serve as a deterrent, ensuring
appropriate behavior by prisoners and keeping workers and students on task. Bentham
did show his concern that residents have some small amount of privacy for their ablutions
by including in each cell a “slight screen, which the prisoner might occasionally interpose
[for] decency, [but which] might be so adjusted as to prevent his concealing from the
Inspector any forbidden enterprize” (Bentham 1791, 11, n.).
Even with this privacy protection, the Bentham Panopticon was a technology
destined to fail. Despite his exact specifications for room size, wall thickness, plumbing,
waste removal, lighting, security, and modesty, Bentham’s elaborate design worked
better on paper than in real life, and for reasons both economic and practical, no true
panopticon prison, hospital, or school was ever built. But although Bentham was
frustrated in his attempts to realize what he saw as a more humane and utilitarian prison,
and serve as its governor, he did establish one important principle that is still around:
technology—in this case, the design of a building—can be used to regulate privacy.
The digital age, like Bentham’s eighteenth century, is an age of Englightenment,
and like that time, rapidly-advancing technologies are bringing surveillance and privacy
concerns to the fore. In this chapter, we will look specifically at ways in which, not new
architectural designs, but new technologies of communication, impact privacy, and we
Baron, Language and law. Ch. 4: The Rise of Communication Privacy, 2
will see that Bentham’s concept of all-seeing surveillance has finally been realized, two
centuries later, with the development of mobile phones and the internet, which track
where we are and what we are doing, and the panopticon of CCTV, with its capacity to
observe everyone in view, not just sometimes, but all of the time, not just in institutional
settings, but in all kinds of buildings, including their hallways, nooks, and crannies, and
on every kind of highway, alley, street, or sidewalk.
Panopticon.jpg
Above: In 1787, Jeremy Bentham and his brother Samuel designed a Panopticon prison
[Steadman 2012, p. 16]. Below: A true panopticon had to wait for the development of
CCTV surveillance [screenshot of a Strike Industries CCTV surveillance system.
http://www.strikeind.com/images/cctvlee6a.JPG. Accessed April 21, 2014].
cctv_strikeindustries.jpg
Communication and privacy Humans developed language anywhere from 50,000 to 200,000 years ago, and we were
probably communicating before that as well, since pre-linguistic communication seems
necessary for language to develop. Along the way, we began separating our
communications into those intended for public consumption, and those which are private.
That, in turn, meant finding ways to protect privacy from those who would breach it, and,
for the snoops in a society, it meant defeating those protections. Privacy is both a social
practice and a legal right. Some of the ways of protecting communication privacy are
codified into law, and the long history of spying and censorship shows that there are legal
ways to invade that privacy as well as illegal ones.
It has become a commonplace to say that the right to privacy is seriously
threatened by advances in digital technology. These digital technologies have brought
new invasions of our privacy, along with new justifications for the invasions. It’s been
obvious for centuries that peeping Toms are breaking the law, but it took a Supreme
Court decision to clarify that the police need a warrant to aim a heat sensor at a house to
see if its residents might be growing marijuana (Kyllo v. United States, 533 U.S. 27
[2001]. And in 2014, the Court will decide two cases hinging on whether the police need
a warrant to search a person’s cell phone after they’ve been arrested (Rylie v. California;
United States v. Wurie).
It’s an age of a new kind of panopticon, where much of what we do is mediated
by the internet and mobile phones, and our on- and offline behavior is visible to
marketers, hackers, and governments whether we like it or not. We hear the constant
lament that privacy is not what it used to be in the good old analog days. Pessimists fear
that the only way to stay private in an age of digital surveillance is to go completely off
the grid, while optimists insist that all that’s necessary to protect privacy and rein in
today’s technological intrusiveness, is to tweak the law. Those cries are punctuated by the
occasional smug assertion that privacy is dead, so get over it. But to the rest of us, it’s
clear that we need more than Bentham’s “slight screen,” more than the slippery privacy
protections set up by Facebook, Google, and the National Security Administration
designed to preserve a modicum of decency but exposing more and more of our behavior
to the “Inspectors.” We still have a need for privacy, even if that need differs from age to
age and culture to culture, and privacy policies and laws need both serious and continual
updating to adjust to technological change.
Technology and the right to privacy Technology has always posed a challenge to privacy. From the start, writing, and
later, print, provided a means of making the private, public—publication, after all, means
‘making things public.’
The earliest reference to a right to privacy in a legal text appears in a discussion
of slander and libel:
[T]he question at present is not as to the moral, or even legal delinquency
of one who publishes the truth, with a malicious design to create mischief,
but whether the party, concerning whom nothing more than the truth is
published, has such a right to privacy and concealment, as shall, even in
point of reason and natural justice, entitle him to a compensation in
damages from one who publishes the fact.
[Starkie 1830, I: liii-liv; emphasis added]
Here, the means of “publishing” the slander or libel—speech and print—aren’t the central
issue: the focus is on the speaker or writer who publishes a truth which the subject wants
to conceal; the technology is incidental.
Technology looms slightly larger in the case of Prince Albert v. Strange (1848),
argued before England’s High Court. Though it concerned, not slander and libel, but the
connection between property and privacy, this case hinged in part on the unauthorized
use of print technology to invade the privacy of Queen Victoria and Prince Albert.
Starting in 1840, Prince Albert and Queen Victoria made sketches for their
personal amusement, some of which they reproduced as etchings to be hung at Windsor
or to be given as gifts to friends. Typically Albert and Victoria printed their own etchings
on the palace press, keeping the plates locked up to ensure that no one made an
unauthorized copy, but in 1847 they gave a printer named Brown some of the plates “for
the purpose of printing off certain impressions thereof for her Majesty and the Plaintiff
[Prince Albert].” Middleton, one of Brown’s employees, secretly printed extra copies of
sixty-three etchings, which he sold for £5 to Jasper Tomsett Judge, a writer specializing
in royal gossip: in one of his books, Judge exposed the royal budget, including the
salaries of the Queen’s advisors and appointees. Judge proposed to exhibit these bootleg
etchings. He also arranged with his printer, William Strange, to publish a catalogue
describing the pictures. On learning of the exhibition, Prince Albert sought and was
granted an injunction both against the public display of the artwork and against the
publication of the descriptive catalogue.
In protecting the royal couple’s right to control news about their artistic hobby,
the court concluded that “the privacy is the right invaded,” connecting that privacy right
with intellectual property:
That there is property in the ideas which pass in a man’s mind is consistent
with all the authorities in English law. Incidental to that right is the right
of deciding when and how they shall first be made known to the public.
Privacy is a part, and an essential part, of this species of property.
The High Court found both that the unauthorized reproduction of the royal etchings was a
clear case of theft, and also that the similarly unauthorized catalogue which described the
etchings in words but did not reproduce the images, was also impermissible.
albertetching.jpg
Above: One of Prince Albert’s etchings, showing his artistic talent. Below: An etching by
Queen Victoria, whose drawing ability was more modest. These are two of a small
number of royal etchings, apparently not ones covered by the injunction, that were made
public in 2012 when they were sold at auction.
victoriaetch1.jpg
The right to be let alone The court did not specifically address the role of technology in Prince Albert v. Strange,
but the printing press is the implicit tool for breaching the royal privacy. By the late
nineteenth century, printing had developed to the point where the technology itself was
starting to be perceived as intrusive and as an explicit threat to privacy.
Samuel D. Warren and Louis D. Brandeis were the first American jurists to argue
that privacy was more than a right to private property, as in Albert v. Strange. It was also
more than the long-accepted right to seek refuge from the turmoil and publicity of
everyday life by going home, shutting the door, and drawing the curtains. Instead,
Warren and Brandeis argued that privacy was the right to be let alone as one went about
one’s daily tasks outdoors, away from the sanctuary of one’s home and castle, in public.
What prompted Warren and Brandeis to articulate this right were new
developments in printing and photographic technology that permitted gossip columnists
and press photographers to expose the lives of ordinary people for all to see:
Instantaneous photographs and newspaper enterprise have invaded the
sacred precincts of private and domestic life; and numerous mechanical
devices threaten to make good the prediction that “what is whispered in
the closet shall be proclaimed from the house-tops.” [Warren and Brandeis
1890, 195]
Samuel Warren may have come to this view because his wife was the daughter of
Sen. Thomas F. Bayard, well-known scion of a prominent Washington political family
often hounded by intrusive reporters (Gaijda 2008). For example, the Washington Post’s
account of Warren’s wedding to the senator’s daughter, Mabel Bayard, gushes,
[T]he tones of Mendelssohn’s wedding march broke upon the ear of the
hundreds gathered to witness this, the marriage of the season, the party
moved down the aisle, and the long expected event, for whch there had
been hopes and fears, heart flutterings and silent longings, was a fact.
[“A Brilliant Bridal” Washington Post, Jan. 26, 1883, p. 4]
And the Post’s overwrought account of the death of Warren’s sister-in-law ran on the
front page under the headline, “Death’s Sad Summons”:
Entering the room and standing by her sister’s bedside, she noticed a
peculiar expression on the face of Miss Bayard, nor did her sister respond
to the several attempts to awaken her. Miss Nannie instantly became
alarmed and screamed out, “Katie is dead!” In a few minutes the family
gathered around the still warm but unconscious form and a scene of
heartrending distress followed. [Washington Post, Jan. 17, 1886, p. 1;
neither the Post nor the New York Times reported the death as a likely
suicide, although that fact was well-enough known to be mentioned years
later in the Milwaukee Journal (“Three strange suicides,” Dec. 22, 1897,
p. 6.]
If the Post’s voyeuristic journalism motivated Warren to write on privacy, he kept
the information private. What is most germane for our consideration of privacy in the
digital age is the concern expressed by Warren and Brandeis that changing technologies
were eroding the private sphere. In the early days of photography, they note, people had
to make a deliberate decision to have their portraits taken. But new cameras and film
made it possible to shoot pictures outside the studio, and without the knowledge or
consent of those photographed, something which posed new challenges for privacy law:
While, for instance, the state of the photographic art was such that one's
picture could seldom be taken without his consciously “sitting” for the
purpose, the law of contract or of trust might afford the prudent man
sufficient safeguards against the improper circulation of his portrait; but
since the latest advances in photographic art have rendered it possible to
take pictures surreptitiously, the doctrines of contract and of trust are
inadequate to support the required protection, and the law of tort must be
resorted to. [211]
Before technology intervened, gossip was spread person-to-person, its range
limited by the social networks of the day. The telephone, which became popular in the
1880s, increased the speed and range of gossip, but it still distributed such chatter the oldfashioned way, from person to person (telephones had their own privacy issues, which we
will discuss later in this chapter). In contrast, the modern newspaper of the 1890s
broadcast gossip to the entire city, the nation, even the world. According to Warren and
Brandeis, the broad publication of such private information created a taste for “idle
gossip, which can only be procured by intrusion upon the domestic circle” (196). For
them, putting such trivialities into the paper perverted the public taste, convincing readers
that such stories were important and crowding out reports about “matters of real interest
to the community” (196).
In addition to whetting the public’s taste for gossip, advances in newspaper and
photo technology led to demands for more articles illustrated with more pictures, and one
result was that ordinary people were suddenly at the mercy of reporters who regarded
everything and everybody as a potential story, along with press photographers intent on
putting anybody’s image on public display, without asking for permission. Warren and
Brandeis saw that the increasing complexities of modern life had made privacy even
more important to the individual, but also more difficult to attain. In their view, what we
would call “virtual” invasions of personal space could be worse than an actual physical
attack:
[M]odern enterprise and invention have, through invasions upon his
privacy, subjected him to mental pain and distress, far greater than could
be inflicted by mere bodily injury.
[Warren and Brandeis 1890, 196]
Celebrities, politicians, and other public figures are subject to different privacy
rules, because they voluntarily put themselves on display, but for the rest of us, as the
authors put it, “Modern devices afford abundant opportunities for the perpetration of [the
unauthorized publication of one’s image or actions] without any participation by the
injured party” (Warren and Brandeis 1890, 211).
To combat this technology-driven invasion of privacy, exemplified in 1890 by
“the unauthorized circulation of portraits of private persons; and the evil of the invasion
of privacy by the newspapers,” Warren and Brandeis posit a right to privacy that covers
more than our reputation (as Starkie put it), or our intellectual property (as in Albert v.
Strange). It also includes who we are and what we do:
a general right to privacy for thoughts, emotions, and sensations, these
should receive the same protection, whether expressed in writing, or in
conduct, in conversation, in attitudes, or in facial expression.
[Warren and Brandeis 1890, 206]
The authors suggest that legal protections for intellectual property can simply be
extended to cover what they call “the right to an inviolate personality”:
The right of property in its widest sense, including all possession,
including all rights and privileges, and hence embracing the right to an
inviolate personality, affords alone that broad basis upon which the
protection which the individual demands can be rested. . . . The principle
which protects personal writings and any other productions of the intellect
or of the emotions, is the right to privacy, and the law has no new
principle to formulate when it extends this protection to the personal
appearance, sayings, acts, and to personal relation, domestic or otherwise.
[211-13]
Warren and Brandeis conclude their essay by outlining the parameters of a legal
right to privacy which permits the publication of private matters that are of legitimate
public interest (including both courtroom testimony and pertinent private details about
the lives of public figures), but also protects both ordinary people and public figures from
invasions of their privacy:
The design of the law must be to protect those persons with whose affairs
the community has no legitimate concern, from being dragged into an
undesirable and undesired publicity and to protect all persons, whatsoever;
their position or station, from having matters which they may properly
prefer to keep private, made public against their will. It is the unwarranted
invasion of individual privacy which is reprehended, and to be, so far as
possible, prevented. [215; to be fair, the press could be sensitive as well as
intrusive. Warren eventually left his law practice with Brandeis to run his
family’s business, though he remained a public figure in Boston’s art
world. When he committed suicide in 1910, the cause of his death was
reported as apoplexy.]
Warren and Brandeis were concerned that innovative newspaper technologies enabling
gossip columnists and out-of-control photographers were breaching privacy in conduct,
conversation, attitudes, and facial expression. Eventually, Brandeis addressed telephone
privacy as well: not the intrusive nature of phone calls, something that early critics of the
telephone complained about, but warrantless government wiretaps. Today we see the
same invasions of privacy in the form of CCTV and the internet, technologies and the
privacy issues surrounding them that will be discussed at the end of this chapter. First,
we’ll take a look in more detail at the technological changes that prompted Warren and
Brandeis’ essay.
Read all about it: mechanical devices lead to invasion of privacy Photography and newspapers, the “mechanical devices” that worried Warren and
Brandeis, were hardly new in 1890, but the rise of what we now call paparazzi and the
gutter press was brought about in large part by three nineteenth-century innovations: the
rotary steam press, the rotogravure process for printing photographs, and easy-to-use,
hand-held cameras.
Improvements in the printing press The invention of the steam-powered rotary printing press in the early 1800s
enabled the mass production of newspapers. Although printing had already become
widespread, its technology hadn’t changed significantly in four hundred years. Gutenberg
used the wine press as a model for the first hand-cranked flatbed screw press in the
1450s, and although wooden presses had been replaced by iron ones, and a few
improvements had been made to the press mechanism, not much else had changed in
terms of press design. As a result, in 1800, books were still slow to print, few newspapers
ran daily editions, and newspapers remained small, often eight pages or less. Then Johann
Koenig invented a rotary steam press in 1814 that could print 1100 pages an hour, more
than doubling the output of the older, hand-operated flatbed press. The London Times
was the first newspaper to adopt the new technology, and others quickly followed.
Richard Hoe improved the design, and by mid-century, the speed of the rotary steam
press quadrupled. At the turn of the twentieth century presses ran faster still: a high-speed
Hoe press, printing both sides of a five-mile-long roll of paper, could churn out 100,000
sixteen-page sections, cut and folded, per hour (Hutchinson 2008, 2).
Above: A working Austrian replica of Gutenberg’s first printing press, with a flat bed and
hand-operated screw mechanism, a design based on the winepress. Cast iron presses sped
the process up, but not significantly. Below: The rotary steam press, invented by Koenig
in 1814, with an output of 1100 pages per hour, enabled true mass production of printed
materials. Using the rotary press, newspapers could publish larger editions on a daily,
rather than a weekly, basis.
As newspapers shifted from weekly to daily editions—some big city papers
published more than once a day—editors scrambled to find stories to fill their expanding
pages. They looked for art as well. The rotogravure process, in which a photographic
image is transferred to a print cylinder, was first used in the 1860s, allowing newspapers
to run photos instead of line art. Demand for photographs dramatically increased as
rotogravure became widespread, but news photography really took off in the 1880s, with
the development of hand-held film cameras. Photographers were more mobile and more
productive once they didn’t have to lug around tripods and boxes of glass photographic
plates. Now too, newspapers could choose from an abundance of pictures, and by the
early twentieth century papers like the New York Times began printing weekly pictorial,
or “rotogravure,” supplements in their Sunday editions, a practice memorialized in the
lyrics of Irving Berlin’s song “Easter Parade”:
On the avenue, Fifth Avenue, the photographers will snap us,
And you’ll find that you’re in the rotogravure.
Improvements in photography Not all newspaper photography was worth singing about, and not everyone
wanted their picture in the paper. Photography had been around since the 1820s, but by
the time “The Right to Privacy” was published in 1890, photographers with “hand
cameras” were shooting a new kind of “instantaneous” photo, the term used by Warren
and Brandeis as well as by the photographers of the time. Today we’d call them candids
or snapshots (snap-shot was a term borrowed from hunting for a shot taken quickly,
without careful aim): their quality didn’t match that of high-end studio cameras, but they
were good enough, not just for vacations and birthday parties, but also for the newlyemerging genre of photojournalism. These hand cameras were to invasion of privacy in
the 1890s what cell phone cameras are today.
In 1888, Eastman Kodak introduced the first hand-held box camera. It used roll
film instead of the more cumbersome glass photographic plates, allowing photographers
to shoot as many as one hundred pictures without reloading, and it sold for $25, about
$650 in today’s dollars—not cheap, but within the reach of upper-middle-class amateurs
as well as working photographers to supplement their professional equipment. For the
general public, the camera was marketed as “the only camera that anybody can use
without instructions” under the slogan, “You press the button, we do the rest.” Other
companies put out similar, inexpensive, easy-to-use, cameras. Professionals were
encouraged to adopt these box cameras, as well as the adjustable pocket cameras that
soon followed, but the main customer for hand-helds was the amateur: Kodak’s first
“Brownie” box camera, released in 1901, sold for only $1 (about $25 today). Kodak
produced half a million No. 1 Brownies in the first year, and they soon numbered in the
millions. Now anyone could be a photographer.
Now anyone could have their photo taken as well, like it or not. Manufacturers
considered surreptitious photography to be a major selling point for their “instantaneous”
cameras, simple point-and-shoot box cameras that didn’t require elaborate set-ups. This
1897 pamphlet from the Rochester Optical Company, a Kodak competitor, encourages
photographers to catch their subject unawares:
Instantaneous Photography possesses a fascination peculiar to itself; the
amateur feels a peculiar desire to take “something,” and if that
“something” be an animate object, unconscious of his presence, so much
the better, and with what a thrill does he see his first “snap shot” develop
up, whether a railroad train, trotting horse, or a man hurrying along the
street, whom he has transfixed with one foot on the ground, the other in
the air, and his whole figure in an attitude that the original would
repudiate, and declare he never assumed such a position, were the proof
not against him.
[Carlton 1897, 38]
1kodakad.jpg
An undated ad for the first Kodak hand-held box camera, released in 1888 and marketed
as “the only camera that anybody can use without instructions.” With this model, the user
didn’t even have to load the film. When the 100-exposure roll was finished, the camera
went back to Kodak for developing and printing. Kodak returned the prints and camera,
loaded with a new roll of film, ready for more. This model sold for $25, or about $650
today (not cheap, but significantly less than the cost of professional cameras). The first
Kodak Brownie, where photographers changed six-exposure rolls themselves, was
released in 1901 and cost $1.00. [Wikimedia Commons image]
Note, too, the pamphlet’s assertion that the photograph offers incontrovertible
proof that something happened. Photographs, because they seemed so much more
realistic than painting and drawing, were widely believed to provide authentic
representations of the natural world. “Photographs don’t lie” is the claim that underpins
what would soon become surveillance photography, but it also brought out the
unbelievers. In Sir Arthur Conan Doyle’s novel The Lost World (1912), the skeptical Dr.
Illingworth reminds an audience of fellow-scientists that pictures can be doctored and are
therefore not trustworthy. The narrator summarizes Illingworth’s rejection of
photographic evidence that a pterodactyl had been found alive in a remote area of South
America:
The corroboration of these wondrous tales was really of the most slender
description. What did it amount to? Some photographs. Was it possible
that in this age of ingenious manipulation photographs could be accepted
as evidence? What more? . . . It was understood that Lord John Roxton
claimed to have the skull of a phororachus. He could only say that he
would like to see that skull.
[Doyle 1912, 181]
In response, the expedition leader, Prof. Challenger, presents Dr. Illingworth, not with a
dinosaur skull, but with a living pterodactyl, which panics when removed from its box,
flies out a window, and is seen no more.
lostworld image.jpg
Photographs don’t lie: In Conan Doyle’s The Lost World, when Prof. Illingworth won’t
believe the photographic evidence, Prof. Challenger brings in a box with the real
pterodactyl in it. The pterodactyl breaks loose, flies madly about the room, then out the
window, and is gone, presumably back to the South American plateau where it was
found. In the 1925 film adaptation of Doyle’s novel, a brontosaurus replaces the
pterodactyl. The brontosaur escapes while its cage is being offloaded at the docks, and it
runs amok terrorizing London. In this still from the film, the brontosaur is crossing Tower
Bridge. Spoiler: In the next frame, the bridge collapses under its weight, and the
brontosaurus falls into the Thames and vanishes.
In any case, despite warnings about their unreliabilty, news photos fed into the “seeing is
believing” mood of readers, and real or faked, these pictures sold papers.
Surveillance cameras The potential for photography to be deployed not just as evidence, but as a
surveillance tool, was also clear from the beginning. William Henry Fox Talbot, the first
English photographer, wrote that the camera could see light invisible to the human eye
and speculated about using photography to unmask secrecy both in real life and in
literature:
Now, I would propose to separate these invisible [i.e., ultraviolet] rays
from the rest, by suffering them to pass into an adjoining apartment
through an aperture in a wall or screen of partition. This apartment would
thus become filled (we must not call it illuminated) with invisible rays,
which might be scattered in all directions by a convex lens placed behind
the aperture. If there were a number of persons in the room, no one would
see the other: and yet nevertheless if a camera were so placed as to point
in the direction in which any one were standing, it would take his portrait,
and reveal his actions.
For to use a metaphor we have already employed, the eye of the
camera would see plainly where the human eye would find nothing but
darkness.
Alas! that this speculation is somewhat too refined to be introduced
with effect into a modern novel or romance; for what a dénouement we
should have, if we could suppose the secrets of the darkened chamber to
be revealed by the testimony of the imprinted paper.
[Talbot, The Pencil of Nature, 1844, p. 30]
library.jpg
The body in the library: Fox Talbot’s speculation about the potential for surveillance
photography to uncover the truth was insightful but premature. England’s first
photgrapher used paper treated with a light-sensitive emulsion placed in a camera
obscura, a back box with a pinhole opening that served as a lens. In order to have enough
light to make the “realistic” image (above) which he called “The Library,” Talbot had to
reconstruct the reality to meet the needs of his technology. He emptied the bookcase, took
it outdoors into the sun, and put the books back in. Then he took the picture. Talbot’s
published collection of photos, The Pencil of Nature, was similarly adapted to the
technology at hand. It consisted of an introduction and printed commentary for each
picture, but the photographs were not printed graphics. Each was an original, shot,
developed, and pasted onto the page. As a result, every copy of the book was slightly
different. This is how art made its way into early printed books as well. Because early
print technology was better for reproducing text than pictures, books like Gutenberg’s
Bible also had their artwork and decorative lettering hand-painted after the pages had
been run through the press.
Speculation about surveillance photography continued into the later nineteenth
cenuty. Marvin (1988) cites a suggestion in the Electrical Review in 1888 that flash
photography could combine with burglar alarms to monitor bank vaults:
As soon as [the burglars] had begun operations the police would be
alarmed, and at the same instant a picture of the men would be made by
the camera and the flash-light combined, so that even if the men escaped
the police, they would leave behind them evidence which would very
probably eventually result in their detection.
[“Flash-light Photography” 1888, p. 3]
As photography became more established, its predicted capacity for surveillance
became a reality. In the latter part of the nineteenth-century, police used cameras to make
mug shots of prisoners, and by the early twentieth-century, police took up photography
for serious surveillance. In 1913-1914, Scotland Yard operatives used telephoto lenses to
photograph imprisoned suffragettes and participants at suffragette rallies, sending
warning fliers with suspects’ pictures to museums, galleries, and other places where
women’s rights advocates had staged protests that sometimes turned violent.
suffragettsurveillance.tiff
Votes for women: “These early examples of state use of surveillance photography show
how they rattled male-ruled Edwardian Britain.” Jones 2013. Under the Hammer.
National Archive Image Library. spy pictures:
http://news.bbc.co.uk/2/hi/uk_news/magazine/3153024.stm
Doyle’s skeptical Dr. Illingworth would have been delighted to learn that one
such surveillance photo was doctored: the imprisoned activist Evelyn Manesta (no. 10,
above) had to be restrained in order to be photographed, but when her picture was
released, the restraining arm around her neck became a scarf.
manestabefore.jpg
manestaafter.jpg
Surveillance photographs of suffragette Evelyn Manesta: on the left, the original shot
shows her with a man’s arm around her neck, restraining her for the photograph; on the
right, the doctored photo distributed on warning posters, with the restraining arm replaced
by a bit of scarf.
Although forcing a prisoner to pose for a photograph and doctoring the images of
protestors may be questionable practices for law enforcement, public surveillance,
whether with eye or camera, is perfectly legal. American law protects people from
intrusive photography when they are at home, even when they are visible through a
window from a public place. But despite Warren and Brandeis’ concerns about intrusive
photographers, in most cases both the police and private photographers may photograph
anyone in a public place without first obtaining permission. Warren and Brandeis might
not be happy with this assessment of the current situation from a recent book on
photography law:
Even the most sensitive aspects of people’s lives, including extreme
tragedy and embarrassing moments, may be photographed freely unless
the subjects have secluded themselves in a place or manner where they can
reasonably expect privacy. . . . If a person in public view does not want
personal moments, embarrassing situations, or unwanted implied
associations photographed, it is their duty to take reasonable measures to
protect their privacy and not the duty of other persons to refrain from
viewing or photographing them. [Krages 2012, Kindle locations 711-12;
732-33]
Laws bar photography in public only when subjects have a reasonable expectation
of privacy, for example in locker rooms, dressing rooms, tanning booths, and restrooms.
Krages says that even after 9/11, and the passage of the USA Patriot Act, “no laws were
enacted that restrict photography. Structures such as bridges, industrial facilities, and
trains remain perfectly legal to photograph” (Krages 2012, Kindle location 1584). And he
argues, perhaps unconsciously echoing the rhetoric of pro-gun advocates, that citizens
with cell phone cameras at the ready don’t threaten public safety, they enhance it, serving
as deterrents to crime and terrorism (Kindle location 1636).
Even though much public photography remains legal, laws may regulate the
publication of those photographs (Krages 2012; laws are more or less specific in their
discussion of photography, depending on the state). News photography in particular is
protected under the First Amendment, but with the spread of online photography and
video sites like YouTube and Instagram, the definition of who counts as a journalistic
photographer is expanding, or at least becoming problematic: it may be a stretch to argue
that anyone posting a silly cat photo online is publishing news, but it’s also true that
many news outlets regularly ask readers to upload eyewitness images of breaking stories
such as natural disasters, fires, accidents, or crimes. Video is another matter: while image
surveillance in public, even by private individuals, remains generally legal, some states
treat the sound track of a video separately, under more-restrictive anti-wiretapping
legislation (Krages 2012).
Even when it[s legal, there are still privacy concerns voiced over the ethics of
public photography. Although Bentham would certainly approve, Warren and Brandeis
might question the practice of CCTV monitoring of public streets, which places
government in the role of full-time inspector of public behavior, and the deployment in a
growing number of cities of police red light cameras and license plate recorders, many of
them maintained by private vendors who earn fees for every ticket issued, a practice we
will discuss in the next chapter.
Number please: The telephone and privacy Warren and Brandeis objected to intrusive private photographers, but “The Right to
Privacy” is silent about the increasingly popular telephone, although that innovative
technology raised privacy concerns from the start. But Brandeis continued to worry about
the impact of technology on privacy, and after he was appointed to the Supreme Court, he
addressed the question of governmental surveillance, and of telephone wiretapping in
particular. As we will see below in his often-cited dissent in Olmstead v. United States
(1928), Justice Brandeis put government surveillance at the very top of his list of threats
to the right to be let alone:
The makers of our Constitution . . . sought to protect Americans in their
beliefs, their thoughts, their emotions and their sensations. They conferred,
as against the Government, the right to be let alone—the most
comprehensive of rights and the right most valued by civilized men.
[Olmstead, 478]
Olmstead was a case where the police did not let someone alone, but instead
conducted a warrantless wiretap. Such wiretaps raised the issue of whether a telephone
conversation was public or private. Today we think of the telephone as a device that
allows us to talk freely and confidentially, but in the early days of telephony that was not
generally the case.
Alexander Graham Bell and Elisha Gray invented the telephone at about the same
time in 1876. The invention took off quickly, and by 1900 there were 1.4 million phones
in use in the United States. But critics of the new technology immediately began to
complain that it was eroding privacy. Some of the complaints came from early telephone
users who didn’t quite understand how the device worked, and worried that a caller could
see as well as hear them (Marvin 1988). Fears were also voiced that the network of phone
lines being strung across cities could capture everyone’s speech, not just the voices of
those making a call. This led the New York Times to predict, only a year after the
telephone’s invention, that the new technology would bring about the “immediate end of
all privacy.” Some today would argue that’s exactly what did happen. According to the
Times, it wasn’t enough just to avoid the telephone and stay off the grid; to protect their
privacy, people would either have to remain silent or give up speech for writing:
No matter to what extent a man may close his doors and windows, and
hermetically seal his key-holes and furnace-registers with towels and
blankets, whatever he may say, either to himself or a companion, will be
overheard. Absolute silence will be our only safety. Conversation will be
carried on exclusively in writing. . . . An invention which thus mentally
makes silence the sole condition of safety cannot be too severely
denounced.
[“The Telephone Unmasked” 1877; cited also in Marvin 1988]
Those who better understood the mechanics of telephony belittled claims that the
new electric technologies saw and heard all. One writer urged the press to educate the
public about the telephone’s real potential instead of stirring paranoia with sensational
predictions that “we shall soon be nothing but transparent heaps of jelly to each other”
(“Sensational Science” 1897; cited also in Marvin 1988). But even discounting such false
fears, privacy was still a serious issue for telephone users.
For one thing, voice transmission in the 1880s was primitive compared to what it
is today: callers had to speak loudly into the phone in order to be heard on the other end.
Whispering was out of the question. In addition, telephones were placed in central
locations in homes and businesses. This meant that everyone in the room could hear at
least one side of a conversation, and sometimes, when the person on the other end
shouted loudly enough, both.
It’s not that callers didn’t want privacy; it just took a while for the technology to
catch up with their needs. The location of phones was limited by their wiring, and
creating privacy required remodeling interior space in order to move phones and callers
away from high-traffic areas into separate, sometimes sound-proofed, rooms (references
to the dedicated telephone call room appear as early as 1885), and eventually into smaller
telephone booths (the expression dates from around 1895), or telephone boxes (1904).
Extension phones were another way to gain privacy, though it took about thirty years for
them to be developed: the term extension phone first appears around 1906.
Even though callers’ privacy had increased, as late as 1918 the telephone was still
considered a means of public communication. In that year, in response to America’s entry
into World War I the year before, Iowa governor Walter Harding forbade the use of
foreign languages in public in the state. The “Babel Proclamation,” as it was called,
established that English, and only English, was to be the language used in schools and
churches, and for all public speeches. Harding included phone calls in his ban on foreign
languages:
Conversation in public places, on trains and over the telephone should be
in the English language.
[Harding 1918, 2, empasis added]
At the time, many rural areas shared “party-line” telephones: a phone that connected the
farmhouses along a country road in series. A pre-determined number of rings let each
family know if the call was for them. It was also possible for multiple parties to join in a
single conversaton, but it was also possible, though impolite, to eavesdrop on calls
intended for someone else. Such eavesdroppers turned in several Iowa women for
violating Harding’s “Babel Proclamation,” an action which turned Iowa into a national
laughingstock. In any case, the ban on foreign languages on the phone, or anyplace else
in Iowa, was lifted a year later, after the armistice was signed.
The earlier technology of telegraphy assumed that message transmission was, to
some extent, public communication. Because telegraphers had to convert messages into
Morse code in order to send them, then decode received messages back into written
English for the recipient, users could have no expectation of privacy. Eyes-only
messages—those that were highly personal or secret—had to be sent by mail, where
message privacy was protected by law, and where there was a greater chance they’d only
be read by the addressee. The telegraph also fell victim to third-party eavesdropping:
business competitors and criminals found ways to tap the telegraph wires in order to
acquire information on stock prices and race results, for example, illicit practices which
led to the first state anti-wiretap laws.
Like telegraphers, telephone operators eavesdropped as part of their job. Before
direct dialing started to spread in the 1890s, callers had to ask an operator to connect their
calls. Not only did operators know who was calling whom—the telephone metadata of
the nineteenth century—they also routinely listened in so they could know when to free
the line for another call—something that had to be done manually because the circuit
didn’t automatically disconnect when the parties hung up. Sometimes operators made
their presence known when they did this, asking “Are you done?” and sometimes they
just lurked in the background, jumping from call to call, unplugging circuits when there
was silence on the line, a practice which occasionally cut off callers who hadn’t finished
but were just collecting their thoughts. An anonymous contributor to The Critic (1895)
celebrates the invention of direct dialing—the first dial phone appeared in 1889—because
it would eliminate the annoyance of operators constantly trying to disconnect the call.
As we saw with Iowa’s party lines, it wasn’t just operators listening in. But
sometimes eavesdropping was unavoidable. Inadequate insulation meant that phone lines
commonly crossed, and a caller might accidentally overhear the contents of another
conversation. The same contributor to The Critic hoped that direct dial would also end
such uncomfortable voyeurism:
another thing will be avoided—the overhearing of other people’s
conversation. Such silly conversation it usually is, too. I have even heard
people trying to kiss over the wire. You can imagine how trying that is
when one is intent upon getting an answer to an important question.
[The Critic, 1895]
Operators did more than connect and disconnect calls. They were also charged
with monitoring the content of phone conversations. Many phone contracts stipulated that
only subscribers, not their friends, clients, or customers, could place calls. Business
subscribers were supposed to make business-related calls. Domestic subscribers were
expected to make domestically-appropriate calls. And all callers were expected to use
polite language, a constraint in keeping with the assumption that even the home phone
was an instrument of public communication (an assumption later affirmed by the
Supreme Court in Olmstead [1928]). Such stipulations about how phone service should
be used have their contemporary equivalent in the digital rights management restrictions
for today’s music, ebooks, and videos. According to Marvin (1988), courts considered
customer complaints that their phone service had been canceled because of swearing; that
a caller had violated the terms of his contract by reporting a fire in the neighborhood (his
phone contract specified he could only make personal calls, and reporting a fire that
wasn’t in his own house didn’t count as personal); that a hotel manager had allowed a
guest to use the hotel phone to make theater reservations (violating the stiupulation that
only employees could make calls). The introduction of the pay phone relieved some of
the pressure on phone subscribers, whose restrictions were also eventually relaxed, but
pay phones, which began to appear in the 1880s in response to growing demands from
users that they be able to make calls while they were were out and about, introduced yet a
new privacy issue: a homeowner might be able to ignore a door-to-door peddler, but the
pay phone allowed anyone with a nickel in their pocket and a con up their sleeve to barge
into that home via the telephone, without warning.
Then there was intentional eavesdropping. Telegraph anti-wiretap laws did not
automatically cover the new telephone, and third parties could tap a line to listen in.
(Interestingly, the term wiretapping first appears in 1878, just two years after the phone’s
invention, in connection with a phone tap; it appears a year later in reference to tapping a
telegraph line.) Marvin (1988, 69) reports that in 1889 a jealous husband bugged his
home phone, transcribed the conversations between his wife and another man, and
successfully sued for divorce. That led to Connecticut’s first law against phone taps.
The police tapped phones as well, without a warrant and with impunity. The
legality of such wiretaps was both questioned and defended into the 1930s. In 1916, for
example, the Senate Legislative Committee held hearings on New York City police
wiretaps of a law office. Defending the practice, New York’s police commissioner,
Arthur Woods, explained that only the guilty have anything to fear from government
surveillance:
No one in this town need have any fear that his conversation will be
listened to unless he is a crook. We will not listen in on any wire except
we are convinced that a crime has been committed or that there is a good
chance to prevent crime.
Using a rationale that, with some stylistic updating, could be used by the National
Security Agency today, Woods emphasized his department’s commitment to
transparency:
The whole conduct of the Police Department is to conceal nothing except
where it is of interest to the public to have it concealed. We take pride in
letting everyone see what’s going on. [“Police Head’s Testimony” 1916.]
New York’s mayor and many business leaders defended police phone taps because not
only did they put criminals behind bars or send them to the electric chair, they also to
protect the “interests of the whole nation in its international relations.”
But at the time, the Federal Government disapproved of police wiretaps. The
Justice Department banned federal phone taps, but agents sometimes ignored that policy.
One such violation led to the landmark Supreme Court decision in Olmstead v. United
States legalizing the practice. But a dissent in the case, by Justice Louis D. Brandeis,
paved the way for reversing that decision in 1967, in Katz v. United States.
Olmstead v. United States Roy Olmstead was a Seattle policeman turned bootlegger. In 1927 he was arrested, along
with members of his operation, and convicted on the basis of warrantless wiretaps. The
Treasury Department was charged with enforcing Prohibition, and a group of Treasury
agents—G-men, as they were called—went against department policy and tapped the
office and home telephones of Olmstead and members of his gang. Olmstead and several
co-defendants appealed their convictions, arguing that their Fourth Amendment
protection against illegal search and seizure had been violated. They argued as well that
the wiretap evidence was inadmissible, since wiretaps were illegal in Washington.
According to that state’s anti-wiretapping law, adopted in 1909:
Every person . . . who shall intercept, read or in any manner interrupt or
delay the sending of a message over any telegraph or telephone line . . .
shall be guilty of a misdemeanor. [Olmstead, 468]
The Supreme Court rejected both arguments, upholding the Olmstead gang’s
convictions. The Court found that illegally-obtained evidence was still admissable, and
that there were no Fourth Amendment violations because the phone taps were placed not
in private offices or residences, but in the basement of Olmstead’s office building and on
telephone lines on the streets outside the defendants’ homes. In his majority opinion,
Chief Justice William Howard Taft characterized phone calls as public communications,
not protected private ones like the U.S. mail:
The United States takes no such care of telegraph or telephone messages
as of mailed sealed letters. The [Fourth] Amendment does not forbid what
was done here. There was no searching. There was no seizure. The
evidence was secured by the use of the sense of hearing and that only.
There was no entry of the houses or offices of the defendants.
[Olmstead, 464]
According to Taft, the telephone offers a way to go out into the world while remaining
physically at home—a function analogous to what the internet does today. Sending one’s
voice on wires that travel outside one’s home is thus no different from walking outdoors
or driving down the street, acts where there is clearly no expectation of privacy:
The language of the [Fourth] Amendment can not be extended and
expanded to include telephone wires reaching to the whole world from the
defendant's house or office. The intervening wires are not part of his house
or office any more than are the highways along which they are stretched.
[Olmstead, 465]
According to the Court, users of the telephone should be aware that making a call
is a pubic act, and as such, the Fourth Amendment does not apply:
The reasonable view is that one who installs in his house a telephone
instrument with connecting wires intends to project his voice to those
quite outside, and that the wires beyond his house and messages while
passing over them are not within the protection of the Fourth Amendment.
[Olmstead, 466]
In “The Right to Privacy,” Warren and Brandeis had objected to new technologies
of print and photography that eroded privacy. As we have seen, some of their
contemporaries would have added the telephone to that list of intrusive devices. But in
his dissent in Olmstead, Justice Brandeis sees the telephone tap, not the telephone itself,
as the danger. Disagreeing with Taft, Brandeis sees the telephone as a way to extend
private, personal communication, and what he objects to are technologies like the wiretap
which invade the privacy of the phone conversation.
To that end, Brandeis argues that telephone conversations should enjoy the same
protections as mail—the Postal Act of 1792 made it illegal for anyone but the addressee
to open a letter. And he warns that government deployment of surveillance technologies,
including those not yet invented, must be limited by the Fourth Amendment:
Ways may some day be developed by which the Government, without
removing papers from secret drawers, can reproduce them in court, and by
which it will be enabled to expose to a jury the most intimate occurrences
of the home. Advances in the psychic and related sciences may bring
means of exploring unexpressed beliefs, thoughts and emotions. The
progress of science in furnishing the Government with means of espionage
is not likely to stop with wire-tapping. [Olmstead 1928. 474; here
Brandeis anticipates not just today’s CCTV monitoring, spy satellites, and
NSA data mining, but also government-sponsored neuroscience research
into lie detection and mindreading, which remain, at least for now, in the
realm of science fiction.]
According to Brandeis, phone taps are worse than mail tampering, and they
constitute even more significant official intrusions than the eighteenth-century
governmental trespasses that the Fourth Amendment was drafted to address:
The evil incident to invasion of the privacy of the telephone is far greater
than that involved in tampering with the mails. Whenever a telephone line
is tapped, the privacy of the persons at both ends of the line is invaded and
all conversations between them upon any subject, and although proper,
confidential and privileged, may be overheard. Moreover, the tapping of
one man’s telephone line involves the tapping of the telephone of every
other person whom he may call or who may call him. As a means of
espionage, writs of assistance and general warrants are but puny
instruments of tyranny and oppression when compared with wire-tapping.
[Olmstead, 475-76]
Brandeis warns that well-intentioned government intrusions, like those justified, for
example, by the New York City police commissioner and his supporters in 1916, and by
the NSA today, because such surveillance puts criminals behind bars and protects
national security, are the kind to fear the most:
Experience should teach us to be most on our guard to protect liberty
when the Government’s purposes are beneficent. . . . The greatest dangers
to liberty lurk in insidious encroachment by men of zeal, well-meaning but
without understanding. [Olmstead, 479]
And as for using illegally-obtained evidence, Brandeis concludes by reminding the
government that it must obey its own laws:
Crime is contagious. If the Government becomes a lawbreaker, it breeds
contempt for law; it invites every man to become a law unto himself; it
invites anarchy. [Olmstead, 485]
But the majority of the Court did not agree, and for almost forty years, the
Olmstead ruling placed telephone conversation outside the protection of the Fourth
Amendment. That didn’t give free rein to wiretap, however. The Communications Act of
1934 took a step in that direction, providing that:
[N]o person not being authorized by the sender shall intercept any
communication and divulge or publish the existence, contents, substance,
purport, effect, or meaning of such intercepted communications to any
person.
[§ 605, Communications Act of 1934]
Because the Communications Act didn’t specifically ban government wiretaps, federal
agents continued to tap the phones of suspected criminals. But in 1937, the Supreme
Court put that practice on hold with its decision in Nardone v. United States, which ruled
that wiretap evidence was inadmissible in court:
[T]he plain words of § 605 forbid anyone, unless authorized by the sender,
to intercept a telephone message, and direct in equally clear language that
“no person” shall divulge or publish the message or its substance to “any
person.” To recite the contents of the message in testimony before a court
is to divulge the message.
Even so, it took another thirty years for the Supreme Court to conclude, in Katz v.
United States (1967), that Brandeis was right, and that telephone conversations deserved
protection against warrantless invasions of privacy.
Katz v. United States Charles Katz was convicted in federal court in California of violating interstate gambling
laws by “transmitting wagering information by telephone from Los Angeles to Miami
and Boston” (Katz v. United States 389 U.S. 347 [1967], 348). Without a warrant, the
FBI set a recording device on top of a phone booth which they knew Katz regularly used
to make his calls. Recordings of his calls, which captured only Katz’s side of the
conversations, provided the evidence for convicting him. Katz appealed, claiming that
calls from a public phone booth carry a reasonable expectation of privacy. The
government, citing Olmstead and other precedents, argued that no warrant was necessary
since such calls, made in public and outside the home, have no Fourth Amendment
protection. The government further argued that since the recorder was outside the phone
booth, there was no physical intrusion, hence no “search” within the meaning of the
Fourth Amendment. It insisted that phone booths, whose walls are glass, are not private
places, since their occupants are visible to those outside the booth. And the FBI didn’t tap
Katz’s calls, agents simply recorded his side of the conversations with a microphone,
overhearing them as any passerby might.
In a 7-1 decision, the Supreme Court rejected these arguments, ruled that Katz’s
privacy had been violated, and reversed his conviction. Olmstead had stated that trespass
required physical intrusion, but in Katz the Court set aside this requirement and ruled
that, by shutting the phone booth door, callers indicate their expectation that their calls
will be private.
In his opinion, Justice Potter Stewart determined that a general right to privacy, to
be let alone by others, was the province, not of the Fourth Amendment, but of the states
(Katz, 350-51). Nevertheless, he found that the Constitution does protect specific aspects
of privacy, including private acts performed in otherwise public places, and so, “what [a
person] seeks to preserve as private, even in an area accessible to the public, may be
constitutionally protected” (351). Even though a person may be visible through the phone
booth’s glass,
what he sought to exclude when he entered the booth was not the intruding
eye—it was the uninvited ear. He did not shed his right to do so simply
because he made his calls from a place where he might be seen.
[Katz, 352]
Justice John Harlan emphasized in his concurrence that intrusion comes in
technological as well as physical form: “reasonable expectations of privacy may be
defeated by electronic as well as physical invasion,” and he called the telephone booth “a
temporarily private place whose momentary occupants’ expectations of freedom from
intrusion are recognized as reasonable”—a cone of silence, as it were (Katz, 361).
In language that echoes Brandeis, Justice Stewart writes that the Fourth
Amendment applies not just at home, in an office, in a friend’s house, or in a taxi, it also
applies in a public phone booth:
[A] person in a telephone booth may rely upon the protection of the Fourth
Amendment. One who occupies it, shuts the door behind him, and pays
the toll that permits him to place a call is surely entitled to assume that the
words he utters into the mouthpiece will not be broadcast to the world. To
read the Constitution more narrowly is to ignore the vital role that the
public telephone has come to play in private communication. [Katz, 352]
Stewart concludes by ruling that physical intrusion is not necessary for search and
seizure:
The Government’s activities in electronically listening to and recording
the petitioner’s words violated the privacy upon which he justifiably relied
while using the telephone booth, and thus constituted a “search and
seizure” within the meaning of the Fourth Amendment. The fact that the
electronic device employed to achieve that end did not happen to penetrate
the wall of the booth can have no constitutional significance. [Katz, 353]
There are two interesting points that surface in Katz. In his concurrence, Justice
Byron White indicated that he would make a national security exception for warrantless
surveillance:
We should not require the warrant procedure and the magistrate’s
judgment if the President of the United States or his chief legal officer, the
Attorney General, has considered the requirements of national security and
authorized electronic surveillance as reasonable. [Katz, 364]
And Justice Hugo Black, dissenting, takes the originalist position that using a recorder to
eavesdrop on a phone call is not qualitatively different from traditional eavesdropping,
hiding under the eaves of a roof to listen in secret to a face-to-face conversation, a
practice not meant to be covered by the Fourth Amendment:
There can be no doubt that the Framers were aware of this practice [literal
eavesdropping], and, if they had desired to outlaw or restrict the use of
evidence obtained by eavesdropping, I believe that they would have used
the appropriate language to do so in the Fourth Amendment. They
certainly would not have left such a task to the ingenuity of languagestretching judges. [Katz 366]
banksywiretap.jpg
Above: A contemporary echo of Katz: A mural on the side of a house in Cheltenham,
Gloucesterhire, presumably painted by the street artist Banksy, depicts agents of GCHQ,
Britain’s top spy agency, wiretapping a public call box. The Guardian. April 14, 2014.
Below: From the TV show, Get Smart, Agent Maxwell Smart and the Chief demonstrate
a portable Cone of Silence, a fictional way of securing privacy in public.
coneofsilence.jpg
In Katz, decided almost a century after the invention of the telephone, phone calls finally
got a full range of privacy protections. But communication technologies continue to
move on, from land line to cell phone, from letters to email, from talking to texting. In
the next chapter, we will see how each of these developments changes our
communication behavior, realigns the border between the public and the private, and
presents new challenges for privacy protection.

Right to Be Let Alone

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