Where did the principle of secrecy in correspondence go?

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.

Anxiety over the inviolability of international correspondence was no minor concern. Upon establishing the first transatlantic telegraph cable in 1858, the American President James Buchanan dispatched Queen Victoria, urging that communications be held “sacred in passing to their places of destination, even in the midst of hostilities.”

He went on to say: “May the Atlantic Telegraph, under the blessing of Heaven, prove to be a bond of perpetual peace and friendship between the kindred nations, and an instrument of Divine Providence to diffuse religion, civilization, liberty, and law throughout the world.” Buchanan’s optimism in the capacity for communications technologies to engender co-operation among states is omnipresent when one examines the history of technological innovation and so is the sanctity of secrecy.

Secrecy was seen as so crucial to the integrity of communications systems that Belgium, France and Prussia signed a Telegraph Convention in Paris in 1852 that allowed telegraph lines to “pass frontiers without interruptions” and required a right to confidential correspondence for all citizens. By 1861, 11 more European countries had joined the convention.

Its success, and growing concern regarding the need to extend the reach of and institutionalise these foundational principles of international communication, resulted in the creation of the first intergovernmental organization in 1865: the International Telegraph Union. Renamed the International Telecommunications Union (ITU) in 1932, the fifth article of the Union’s charter compels member states to protect the confidentiality of messages crossing international borders.

Ten years after the ITU’s inauguration, in 1875, a second intergovernmental organization was established, also to coordinate international information flows: the General Postal Union, which was renamed the Universal Postal Union (UPU) three years later. According to the director of Britain’s Postal Services, Brigadier-General F. H. Williamson, the UPU was, “the first union in history including all the nations of the world.”

By 1900, Josef Zemp, the head of Swiss Rail and Post trumpeted the UPU as “the most powerful work for peace which history has ever seen.” In fact, the UPU and ITU were so integral to international politics that adherence to their provisions were often among the first commitments made by newly established governments. Enthusiasm for the emergence of these first international institutions sparked further interest and confidence in the efficacy of collective governance.

Of course, international law did not stop governments from snooping on domestic and foreign correspondence. Historians have exposed numerous, robust governmental programs to monitor mail and telegraph systems. Crucially, however, the prevailing norm was to guarantee an individual’s right to private communications. This meant that states had to justify exceptions to the rule, which facilitated accountability and, when the rule of law was broken, consequences.

Central to the early success of these institutions was a willingness among states to agree to shared rules that would restrict their capacity to act for the sake of maintaining the integrity of the systems themselves. Speaking at the fiftieth anniversary of the UPU in 1924, Swedish Post director Claes Juhlin argued that international institutions only work when states “have the will to subordinate special interests to general interests. It is in possessing these great qualities that we shall best and most thoroughly serve both our own interests and those of the world.”

Concern regarding the confidentiality of messages crossing international borders played a central role in driving governments to agree to set their national interests aside to allow for a stable, secure system of international communication. This concept was integral to the effectiveness of the first international institutions that laid the groundwork for the entire UN system of international governance. Put simply, if states can’t trust each other to protect the integrity of a letter or a phone call, how can they be expected to set aside their parochial interests when it comes to addressing bigger problems, like poverty, war, and environmental catastrophe?

So why this stroll down memory lane? Because the historic role of secrecy in international relations has clear and direct application to contemporary debates about privacy and surveillance. Recently, FBI director James Comey attacked Silicon Valley for embracing end-to-end encryption in an effort to “deprive police and intelligence companies of potentially life-saving information.” What Comey overlooks is the consequences of such surveillance for the integrity of the global communications infrastructure. If governments and companies can’t trust the web, they will revert to closed, protected spaces, likely traceable to modern state boundaries. Such a global communications architecture would almost certainly slow the global economy, not too mention American intelligence gathering and law enforcement capabilities.

So, where did the principle of secrecy of correspondence go? Codified in international and domestic laws, how was the norm not considered parallel to, if not more important than, protections for free speech online? Looking back, Secretary of State Hillary Clinton’s articulation of the internet-freedom paradigm—which inculcated the internet as a shared, public space – wasn’t simply lofty neoliberal rhetoric. It was a deliberate framing of human rights online that protects free speech but not the anonymity of that speech or the secrecy of one’s communications. According to Western legal doctrine, once one enters a shared, public space, their individual rights are curtailed in order to preserve the security and integrity of that space. In a public park, for example, it is perfectly legitimate for a government to monitor your behavior and listen to your conversations.

Mail, on the other hand, is considered a specific transmission of information between two or more people, and is afforded robust protections from government intrusions on the content of the messages. The content of telephone calls, too, is typically considered private, unless they take place in a public place. International treaties and organizations continue to ensure the secrecy of correspondence, as long as that correspondence takes place via traditional, twentieth-century means of communicating. So why wouldn’t analogous attempts to communicate, when taking place via the internet, be afforded similar types of protections?

The answer comes down to economics and geopolitics. The modern internet economy in many ways evolved out of a casual disregard for secrecy and privacy; it is dependent on gathering and analyzing individual user behavior and benefits a handful of western countries and companies. Targeted advertising accounts for the vast majority of internet revenue. It is a technique incompatible with the principle of secrecy of correspondence. If correspondence (and browsing) remained secret, internet companies couldn’t promise advertisers that their ads will be effective. Advertisers would thus revert to traditional mass-communication platforms to reach their potential consumers.

As a result of the Snowden revelations, however, the internet economy is changing fast. Some experts estimate the economic fallout will cost American technology companies $180bn in business. Businesses and consumers alike are demanding changes that necessitate changes to the underlying business model, including ways to protect the sanctity of private information. Internet giants will have to decide if they want to go the way of the East India Company or adapt to the emerging dynamics of the post-Snowden internet economy.

Protecting the secrecy of correspondence would limit governments from wholescale surveillance, though, it wouldn’t prevent law enforcement from pursuing private information through lawful means (eg a warrant). But law enforcement agencies have become dependent on surveillance for even the most mundane policing. In today’s golden age of surveillance, it is easy to forget that governments successfully weathered robust privacy protections for centuries. Indeed, such protections allowed for trust between people and governments, trust which was leveraged to establish broader agreements, treaties, and norms.

When the UPU was formed, statesmen understood that establishing shared standards and rules for communication across national borders, including protecting the confidentiality of messages, was critical. Their commitments became integral to the emergence of today’s international institutions, the bedrock of modern international relations.

Yet, today, international internet governance is veritably in shambles; and governments are rushing to try to control this crucial digital space by any means necessary, a trend I refer to as the rise of information sovereignty. With this in mind, acknowledging the necessary fallout from the Snowden revelations and the real possibility of the emergence of nation-based intranets, perhaps it is time to consider expanding our definition of internet freedom to include a guarantee of secrecy of correspondence. Such a move may, at a minimum, provide the historical context for protecting the integrity of online communications and establish a path forward for a shared, global, and democratically inclined internet.