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The Apple of Their Day: Telegraph Companies Fought for Privacy

Stephen Mihm, an associate professor of history at the University of Georgia, is a contributor to the Bloomberg View. Follow him on Twitter at @smihm.
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The Federal Bureau of Investigation's battle of wills with Apple Inc. over unlocking an IPhone belonging to one of the terrorists who carried out a deadly attack in California last year may sound like a strictly 21st century conundrum over privacy and technology.

But by refusing to provide access to investigators, Apple Chief Executive Officer Tim Cook joins a long line of tech innovators who have waged campaigns on behalf of their customers’ privacy. In many cases, their advocacy was self-interested. But it also had consequences for the development of laws protecting Americans against unreasonable searches and seizures.

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The telegraph probably was the most miraculous technology of the 19th century because it allowed messages to travel vast distances in a split second. Tens of thousands of miles of telegraph lines went up throughout the U.S. beginning in the 1840s, connecting the country in a web of wires.

Unlike the U.S. Postal Service, the telegraph was operated by private companies, and the expectations of privacy that cover letters sent by mail did not extend to telegraphic communications. Moreover, telegraph companies archived all messages sent and received, leaving behind a paper trail the authorities could readily review.

Some states passed laws protecting the secrecy of telegraphic communications. But as a legal scholar wrote in 1880, in 18 of the states, neither telegraph companies nor their employees had to abide by any pretense of secrecy at all. In the remaining states, it was relatively easy for courts to issue a subpoena duces tecum, which compelled telegraph companies to produce, say, all transmissions by and to a particular party.

This was bad news. Americans used the telegraph to conduct important business, cut political deals and transmit information that, more often than not, was meant to remain confidential. (The telegraph was most definitely not a suitable medium for sharing the Victorian equivalent of LOL cats.)

Simply put, telegraph customers didn’t want their secrets spilled. And so the companies stepped up to the plate.  The first case involved President Ulysses S. Grant’s personal secretary, Orville Babcock, whom federal prosecutors suspected of helping St. Louis distilleries evade federal revenue laws.  The government demanded that Western Union produce all the telegrams transmitted between Babcock and a revenue agent in St. Louis.

Western Union and its president, William Orton, demurred. The company's lawyers, however, did not reach for a lofty constitutional argument to buttress the refusal. They argued instead that the subpoena had been “improvidently issued,” and demanded that the government's request be more specific and targeted. They also protested that compiling these materials would “require an immense amount of labor.” 

The courts dismissed this gambit and enforced the subpoena. But this was just the first in a series of clashes between the government and telegraph companies. Increasingly, the latter emerged as champions of the right to privacy.

The next big dust-up followed the contested presidential election of 1876, when a congressional committee investigating voter fraud issued a sweeping subpoena to Western Union that demanded all telegrams sent and received by seven individuals.  Once again, Western Union fought back, arguing that this amounted to a general warrant prohibited by the Fourth Amendment, and refused to supply the telegrams.

The fight over the request put Western Union’s Orton at the center of a political brawl in Congress. Representative James Garfield of Ohio, later to be president, defended Orton’s stance. If “the telegrams of seven citizens could be called for," he asked, "should not those of 700? And if 700, why not those of all of the adult population of America?”

These arguments fell on deaf ears, and after Orton continued to refuse orders to hand over telegrams, Congress ordered him arrested. Orton, whose health was failing, capitulated, earning him the contempt of many privacy advocates. In  1877, the New-York Tribune declared that that company had “surrendered.” Western Union, it opined, had “agreed to betray the confidence of its patrons in order to protect its officers and directors from the possibility of imprisonment.” The newspaper added: "It is a great pity that there had not been somebody at the head of this powerful corporation with nerve to bring the matter to an issue.”

This was unfair: Orton was dying, and understandably refused to spend his remaining days in prison. But the new leaders of Western Union continued the fight, winning a significant victory in Missouri the following year. 

The case began after a grand jury demanded telegrams from a local Western Union office under a subpoena duces tecum, Western Union instructed its local employees not to cooperate, and the case went to the Missouri Supreme Court. The court ultimately sided with the telegraph company, concluding that these open-ended demands for telegrams “would lead to consequences that can be contemplated only with horror, and such a process is not to be tolerated among a free people.”

The legal scholar Wesley MacNeil Oliver has observed that this case effectively leveled the playing field between the telegraph companies and government authorities. Although the government could still demand specific telegrams, a thicket of case law constrained the power of the government to subpoena limitless transmissions.

The legal issues at stake in the Apple case are obviously different from those of an earlier era. But the principals -- cutting-edge tech titans on one side, government officials on the other -- remain the same.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Stephen Mihm at smihm1@bloomberg.net

To contact the editor responsible for this story:
Max Berley at mberley@bloomberg.net