Someone has always been watching

The June 24th issue of the New Yorker has an excellent short history of privacy and surveillance by Jill Lepore.  You should try to read the entire article either online (I can’t remember what rules the New Yorker has about access) or get a copy of the magazine.  For my purposes today, I am going to concentrate on the story of Giuseppe Mazzini.  Never heard of him before?  Me either, but his story is instructive.

An extraordinary fuss about eavesdropping started in the spring of 1844, when Giuseppe Mazzini, an Italian exile in London, became convinced that the British government was opening his mail. Mazzini, a revolutionary who’d been thrown in jail in Genoa, imprisoned in Savona, sentenced to death in absentia, and arrested in Paris, was plotting the unification of the kingdoms of Italy and the founding of an Italian republic. He suspected that, in London, he’d been the victim of what he called “post-office espionage”: he believed that the Home Secretary, Sir James Graham, had ordered his mail to be opened, at the request of the Austrian Ambassador, who, like many people, feared what Mazzini hoped—that an insurrection in Italy would spark a series of revolutions across Europe. Mazzini knew how to find out: he put poppy seeds, strands of hair, and grains of sand into envelopes, sealed the envelopes with wax, and sent them, by post, to himself. When the letters arrived—still sealed—they contained no poppy seeds, no hair, and no grains of sand. Mazzini then had his friend Thomas Duncombe, a Member of Parliament, submit a petition to the House of Commons. Duncombe wanted to know if Graham really had ordered the opening of Mazzini’s mail. Was the British government in the business of prying into people’s private correspondence? Graham said the answer to that question was a secret.

Sound familiar?

Questions raised this month about surveillance conducted by the National Security Agency have been met, so far, with much the same response that Duncombe got from Graham in 1844: the program is classified. (This, a secret secret, is known as a double secret.) Luckily, old secrets aren’t secret; old secrets are history. The Mazzini affair, as the historian David Vincent argued in “The Culture of Secrecy,” led to “the first modern attack on official secrecy.” It stirred a public uproar, and eventually the House of Commons appointed a Committee of Secrecy “to inquire into the State of the Law in respect of the Detaining and Opening of Letters at the General Post-office, and into the Mode under which the Authority given for such Detaining and Opening has been exercised.” In August of 1844, the committee issued a hundred-and-sixteen-page report on the goings on at the post office. Fascinating to historians, it must have bored Parliament silly. It includes a history of the delivery of the mail, back to the sixteenth century. (The committee members had “showed so much antiquarian research,” Lord John Russell remarked, that he was surprised they hadn’t gone all the way back to “the case of Hamlet, Prince of Denmark, who opened the letters which had been committed to his charge, and got Rosencrantz and Guildenstern put to death instead of himself.”)

The report revealed that Mazzini’s mail had indeed been opened and that there existed something called the Secret Department of the Post Office. Warrants had been issued for reading the mail of the king’s subjects for centuries. Before Mazzini and the poppy seeds, the practice was scarcely questioned. It was not, however, widespread. “The general average of Warrants issued during the present century, does not much exceed 8 a-year,” the investigation revealed. “This number would comprehend, on an average, the Letters of about 16 persons annually.” The Committee of Secrecy was relieved to report that rumors that the Secret Department of the Post Office had, at times, sent “entire mail-bags” to the Home Office were false: “None but separate Letters or Packets are ever sent.”

“Secresy is an instrument of conspiracy,” Jeremy Bentham argued, in an essay called “Of Publicity,” first published in 1843, a year before the Mazzini affair. “It ought not, therefore, to be the system of a regular government.” By “publicity,” Bentham meant what is now usually called transparency, or openness. “Without publicity, no good is permanent: under the auspices of publicity, no evil can continue.”

In 1844, during the parliamentary debate that followed the report issued by the Committee of Secrecy, some members, believing, with Bentham, that publicity is the enemy of secrecy, suggested that it was fine for the government to open people’s mail, as long as the recipients of the mail were notified that it had been read. (Disraeli said that he would be only too happy to hand over his mail to the Home Office: “They may open all my letters, provided they answer them.”) In “Letter-Opening at the Post-Office,” Mazzini revealed just how much the debate had been informed by Bentham’s arguments about publicity. Diplomats might have their secrets, he granted, but postmen? “Why, who are these men who treat as enemies their fellow subjects of the realm?” he asked. “For public servants, we want responsibility and responsibility cannot be obtained without publicity. Secrecy is but another word for fear. MYSTERY was the name of the beast in the revelations. The great monster by which was typified all the civil and ecclesiastical corruptions of the earth, had on its forehead a name written and that name was MYSTERY.”

There is a delicate balance between privacy and surveillance.  Is it  OK for the government to collect all the metadata but not look at content without a warrant so long as we know that is what is happening?  And who keeps an eye on the FISA court?

In 1890, two Boston lawyers, Samuel Warren and Louis Brandeis, published an article in the Harvard Law Review called “The Right to Privacy.” Warren was a Boston Brahmin, but Brandeis’s parents were Eastern Europeans who had supported a failed uprising in Austria in 1848—the very revolution that, four years before, had been anticipated by the Austrian Ambassador who persuaded the British Home Secretary to read Giuseppe Mazzini’s mail. The suppression of the uprising had been followed by a wave of anti-Semitism, leading to the Brandeis family’s decision to emigrate to the United States. Louis Brandeis was born in Kentucky in 1856. In the eighteen-seventies, he and Warren were classmates at Harvard Law School (Brandeis helped found the Harvard Law Review); after graduation, they opened a law firm together. Warren married Mabel Bayard, a senator’s daughter, in 1883. As the legal scholar Amy Gajda has shown, nearly sixty articles of gossip about the Warren-Bayard family appeared in newspapers between 1882 and 1890—including front-page stories, two weeks apart, about the funerals of Mrs. Warren’s mother and sister. Warren was infuriated. His household had been violated; his family’s privacy, like a letter, had been purloined. (A great many ideas about privacy have to do with hiding women and families.)

In “The Right to Privacy,” Warren and Brandeis argued that there exists a legal right to be let alone—a right that had never been defined before. Their essay lies at the heart of every legal decision that has been made about privacy ever since. The right to privacy, as they understood it, is a function of history, a consequence of modernity. Privacy, they argued, hadn’t always been necessary; it had become necessary—because of the shifting meaning and nature of publicity. By the end of the nineteenth century, publicity, which for Bentham had meant transparency (the opposite of secrecy), had come to mean the attention of the press (the opposite of privacy). Making public the deliberations of Congress was a public good; making public the names of mourners at Mrs. Warren’s mother’s funeral was not. (The same distinction informed the debate that resulted, in the eighteen-eighties and nineties, in the adoption of the secret ballot. Citizens vote in private; legislative votes are public.)

But with blogs, Facebook, Twitter and other new media, those of us who post and tweet want people to read what we say and when we do so we should be aware that we are being public.  Email, however, is the new version of writing a letter and the government reading email is like reading Mazzini’s mail.  There is a very fine line between collecting email records and looking at content and many wonder if we can actually trust the government to honor the distinction.  With cell phones and GPS, our whereabouts can also be tracked. (I’m a fan of NCIS and love the way McGee can locate the bad guys – and sometimes the good ones – using a cell phone number.)  It seems that we are beginning, if we haven’t already, accepted that a lot of our private lives are now public because we put them out there.  We are not like the Warren family who did not want a list of the mourners at a funeral made public.

It is likely that someone has always been watching and it is clear that we still haven’t figured out that troublesome line between public and private.

Here is an old New Yorker cartoon from around 1973.