Privacy as a legal construct is relatively recent. Until Samuel Warren and Louis Brandeis penned their famous 1890 essay “The Right to Privacy”, private information was protected from disclosure and surveillance by another name: the secrecy of correspondence. Perhaps ironically, the right to secrecy has long been considered sacrosanct – both in domestic and international communications – a fundamental precondition for the honest and free flow of ideas and information and the development of a mature international political system. The right to have secrets, despite centuries of legal lineage and a firm grounding in democratic theory, remains elusive in an era of ubiquitous digital communication (and hackers hell-bent on outing Ashley Madison subscribers). But it is central to the vitality of democratic and international governance.
America’s Constitutional Postal System, which preceded its declaration of independence by one year, was founded in large part as a reaction to the threat posed by British control over – and surveillance of – this crucial 18th-century communications network. Benjamin Franklin’s close associate, William Goddard, whose private postal network became the backbone of the American post office,wrote in 1774: “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.” Crucially, the Constitutional Post (not to be confused with Britain’s “Parliamentary Post”) legally and professionally protected both private (letters) and public (newspapers) communication from surveillance and censorship. These protections proved so influential, that the American founding fathers inculcated these same protections into the Bill of Rights and constitution – two of the most meaningful documents in history.
As electronic information technologies evolved, from the telegraph, to the telephone, to the internet, global interest in protecting the secret correspondence only continued to increase. This fixation on secrecy evolved out of an interest in protecting diplomatic secrets as well as corporate information. Mass adoption of the telegraph was hampered by fears of a loss of control over personal information transmitted electronically by private companies and foreign governments.