Tracing Privacy: From Telegraph to Telephone

The world was in the midst of a technological revolution. With each new invention, communication and information exchange saw an unprecedented increase. The print industry blossomed with the advent of the digital age, witnessing an explosion of inventions and usage. It was only natural that this rapid growth would bring about privacy concerns. Why not? The audio-visual information about individuals became more accessible than ever before, profoundly impacting personal lives. Accordingly, new laws and regulations were created to address these growing problems.

To comprehend the evolution of these legislations, it’s crucial to trace the timeline of inventions that spurred their necessity. After all, as the saying goes, necessity is the mother of invention.

Consider life in the 19th century when communication across long distances took patience. Then came a wave of technological wonders like the telegraph, telephone, and radio, which changed our world completely, making instant communication possible today. But as they say, “With great power comes great responsibility”—or in other words, significant privacy issues. How did society handle this newfound capability for connection while also protecting our private lives?

Picture this: it’s 1837, and Samuel Morse has just introduced the telegraph. For the first time in history, long messages could be sent almost instantaneously. This must have been revolutionary, right? However, there was a catch: these messages might have been read by others. The concern went beyond nosiness to saving the private correspondence of people and companies from what is nowadays called identity theft. Because of that, New York in 1850 made it illegal for telegraph operators to divulge message content without permission. Pennsylvania followed in 1855 and required telegraph companies to keep copies of messages for three years each, though no such law was passed anywhere else. [1]

Move on to 1876, when Alexander Graham Bell invented the telephone.[2] Now we could send voice messages too! Doesn’t it sound incredible? But with this innovation came new challenges. Listening secretly to other people’s phone conversations became a major threat to confidentiality in those days when wiretapping and eavesdropping were just starting to develop as new concepts. Imagine having a confidential conversation with someone, only to discover that certain individuals had been snooping around. As a result, this led society to reconsider privacy laws to maintain our right to communicate secretly among ourselves.

Guglielmo Marconi arrived with the radio in 1895,[3] which was a game-changer for mass communication. Information could now be made available extensively to large groups of people. But it never violated privacy directly; rather, it got us thinking about the limits of public exposure and private information.

The establishment of the Federal Trade Commission (FTC) in 1914 through the Federal Trade Commission Act (FTCA) marked a significant milestone in privacy regulation. The FTCA aimed to prohibit unfair or deceptive commercial practices, and since the 1970s, the FTC has been the leading federal agency involved in privacy issues, regulations, and enforcement.[4] As digital communication technologies have advanced, the FTC’s role in protecting consumer privacy has become increasingly critical.

In 1916, a study on the unlawful practices of New York’s public utilities revealed that police were intercepting hundreds of telephone calls annually in efforts to apprehend criminals and quell ongoing labor unrest. This revelation sparked a national scandal, prompting a Senate Committee recommendation for New York to regulate police wiretapping practices.[5] The incident highlighted the potential abuses of wiretapping by law enforcement and underscored the need for legislation to safeguard individuals’ privacy rights.

During the early 20th century, the Bureau of Investigations (later the FBI) actively investigated acts of foreign sabotage and subversion. Surveillance efforts included monitoring and unlawfully opening correspondence of suspected subversives. In 1917, Solicitor General Judge William Lamar ruled against such privacy infringements, upholding longstanding protections of sealed mail.[6] This ruling emphasized the importance of maintaining the confidentiality of personal communications and established a precedent for future privacy protections.

By the 1930s, these technologies began to merge under the umbrella term “telecommunications.” This is when digitization started to change our communication systems but did not necessarily offer greater protection against illegal interception. Fiber optic lines helped a little, though, because they are difficult to tamper with without being detected.

In employing media as a means of communication, one must consider the evolution of electronic communication systems. Initially limited to transmitting analog signals via telephone lines, technology advanced to include digital signals, enhancing communication capabilities. However, did this digitization provide added protection? Not necessarily. Fiber optic lines offered some defense against snooping, as attempts to covertly tap into these lines often leave detectable traces. Yet, the increased volume of digital communications also expanded the potential for information to be accessed by third parties.[7]

These historical events and legal developments illustrate the ongoing struggle to balance the needs of law enforcement with the protection of individual privacy rights, a tension that continues to shape modern privacy regulations and practices.

Privacy has been a concern for longer than the modern era, and it has been recognized globally as a fundamental human right since the mid-20th century. The Universal Declaration of Human Rights, dating back to 1948, boldly asserts our right to be free from unwarranted intrusions into our private lives, homes, and communications under Article 12. This landmark declaration laid the groundwork, urging nations to embed these principles into their own legal frameworks.

Internationally, several key documents uphold privacy rights, including Article 17 of the International Covenant on Civil and Political Rights and Article 8 of the European Convention on Human Rights. These provisions guarantee our right to privacy while also acknowledging the need for lawful protection against interference.

Enter the European Court of Human Rights (ECtHR), a pivotal player in defining privacy in our modern context. Through its decisions, the ECtHR interprets the broad scope of Article 8 of the European Convention on Human Rights (ECHR), considering everything from personal data protection to the impacts of technological advancements on our private lives.[8] This flexible approach ensures that privacy protections evolve alongside societal changes.

The ECtHR has developed a significant body of case law interpreting this right, considering two main conditions:

Whether there was interference with the right to respect for private life; and

Whether the interference was legitimate according to the law and necessary in a democratic society for specific interests such as national security, public safety, economic well-being, prevention of disorder or crime, protection of health or morals, or protection of the rights and freedoms of others.[9]

Article 8 covers broad areas of life, but the ECtHR has stated that no exhaustive definition of private life can be provided. Technological and scientific developments have encouraged the ECtHR to create a flexible interpretation of private life. The court has considered various conditions of life under the scope of Article 8, such as access to personal data, telephone interception, choice or change of name, sexual life, profession or domicile, protection against environmental nuisances, and the right to establish and develop relationships with others.[10] The ECtHR’s flexible case law has adapted to the changing societal and economic conditions.

The Council of Europe also addressed data protection by invoking Article 8 of the ECHR and adopting the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (Convention 108) in 1981. Building on the ECtHR’s framework, the Court of Justice of the European Union (CJEU) aligns its judgments, and the two courts share a commitment to protecting privacy rights across Europe. Their rulings, rooted in the Charter of Fundamental Rights of the European Union, such as Article 7 of the Charter of Fundamental Rights of the European Union, are based on Article 8 of the ECHR and reflect a nuanced understanding of privacy in our digital age.[11]

The rise of computers in the 1970s sparked new debates about privacy adequacy. This era birthed data protection rights, culminating in landmark regulations like the GDPR. Born out of the EU’s commitment to safeguarding personal data, these regulations set a global standard for privacy in the digital age.

Looking ahead, the proliferation of Internet-connected devices presents fresh privacy concerns. Smart devices and RFID technology enable unprecedented surveillance capabilities. Imagine your daily activities being monitored and recorded in real-time; that is our current reality. How do we defend our personal freedoms in such a hyper-connected world? Robust legal frameworks and technical safeguards are crucial, but so is our vigilance and understanding of these technologies. As innovation marches on, we must ask ourselves: are we doing enough to protect our privacy?

In conclusion, the history of privacy rights, from foundational declarations to modern data protection laws, shows our ongoing adaptation to technological advancements. The dynamic interpretations by courts worldwide underscore the resilience of privacy as a cornerstone of human rights. Yet, as the world becomes more connected, safeguarding privacy and personal data requires both innovation and an unwavering commitment from all of us.

[1] Jepsen, Thomas. “Reversing the Whispering Gallery of Dionysius: A Short History of Electronic Surveillance in the U.S.” Technology’s Stories Vol 2, No. 1 (2014) https://www.technologystories.org/reversing-the-whispering-gallery-of-dionysius-a-short-history-of-electronic-surveillance-in-the-u-s/

[2] Richardson, Alan J. “The cost of a telegram: the evolution of the international regulation of the telegraph” Accounting History. (2015) https://scholar.uwindsor.ca/odettepub/84

[3] Id.

[4] Available at https://safecomputing.umich.edu/protect-privacy/history-of-privacy-timeline.

[5] Available at https://safecomputing.umich.edu/protect-privacy/history-of-surveillance-timeline#:~:text=First%20wiretapping%20by%20police%20is,in%20secret%20wiretapping%20for%20years.

[6] Available at https://safecomputing.umich.edu/protect-privacy/history-of-privacy-timeline.

[7] “Telephone Surveillance” (Princeton). Available at https://www.princeton.edu/~ota/disk2/1985/8509/850905.PDF

[8] Palmer, Vernon Valentine. “Three Milestones in the History of Privacy in the United States” Tulane European & Civil Law Forum, Vol. 26 (2011) https://blogs.acu.edu/commlaw/files/2012/09/Three-Milestones-in-the-History-of-Privacy-in-the-United-States.pdf.

[9] Id.

[10] Id.

[11] Id.

Connect with Ajay Mago or any member of EM³’s Data Privacy and Cybersecurity practice for professional support.

Ajay Mago is a former AmLaw 100 partner, with more than 16 years of experience in technology transactions, including at Jones Day, Mayer Brown, and Duane Morris. Mr. Mago advises on a wide array of sourcing, technology and other commercial transactions and helps companies navigate legal issues raised by data, emerging technologies, and digital transformation, both on the buyer and provider side. He routinely advises clients on IP strategy, management, and monetization arrangements, leveraging his technology background and business experience.