The word does not occur in our Constitution. It is a Judicial Construct by Extension from the British custom of granting privilege to an Englishman’s Private Property.
Privacy rode into our Bill of Rights on the Fourth Amendment, as authored by James Madison, which specifies protection against ‘unreasonable search and seizure’ of documents or persons without judicial warrant based upon ‘probable cause’. Extension of Fourth Amendment rights to include personal Privacy happened only in the 20th century — with Katz v. United States (1967), when the Supreme Court held that 4th Amendment protections extend to the privacy of individuals as well as physical locations.
When Kings ruled and lesser nobility took what they wanted from common people, rulers were always alert to plots against them. Spies were paid and eavesdropping rewarded. Communication among subjects, if in writing, was interdicted or intercepted as necessary. The Royal Post in England was created under Henry VIII, in response to the desire of authorities to control publication and dissemination of ideas. Especially heretical ones.
In July 1655 the Post Office came under the direct control of John Thurloe, a Secretary of State, Cromwell’s spymaster general. Previous English governments had tried to prevent conspirators communicating; Thurloe preferred to deliver their posts having surreptitiously read them.
In those times, even people exchanging letters with friends often relied on various forms of secret writing. True cryptography — first developed by Islamic scholars in the 800s — bloomed again everywhere in Europe.
Thus matters stood until Samuel F. B. Morse developed his electric telegraph, setting off a cascade of related inventions and applications that almost immediately — think 1861-65 — evoked government oversight and surveillance. “Television kills telephony in brothers’ broil,” wrote James Joyce; he was wrong: telecommunication media and methods don’t supersede one another, they co-evolve, and the State’s interest in adapting them to its purposes ensures that it continues to control them in one way or another.
In 1913 the U.S. Justice Department inked a consent decree with AT&T, whereby the Bell System agreed to divest itself of a controlling interest in Western Union, and so escaped Sherman Anti-Trust Act prosecution as a commercial Monopoly, becoming instead a government-sanctioned monopoly(!) — that made everything okay, you see. A few years later, when America entered the World War I, Bell Telephone was formally nationalized from June 1918 to July 1919, confirming the existential connection between national power and all forms of communication.
There came about a relationship between telephony and law enforcement which was eventually sanctioned by legal decisions, and, in our own time, by legislation: the wiretap. Initially justified as surveillance of conventional criminals, it was soon deployed in the hunt for political dissidents and radicals. One striking thing about wiretapping is the century-long persistence of police on all levels at tapping phones in spite of continuing public disapproval [see: https://www.counterpunch.org/2013/08/09/a-social-history-of-wiretaps-2/], and even legal opposition by some Bell System companies. Also striking is the way public disapproval of wiretapping fluctuates with perceptions of whose private conversations are tapped; when it’s kidnappers or mafiosi we the people favor police eavesdropping on the line, but when it’s our personal phone that’s a bad, bad thing.
Great Britain prodded the U.S. into War One in 1917 with its interception on the trans-Atlantic cable of a telegram from the German Foreign Minister to the government of Mexico, offering an alliance whereby Germany would get aid fighting France and England in exchange for helping Mexico regain Texas and other parts of the Southwest. (For the complete story, including a full account of how British code-breakers schemed to conceal their ‘sources and methods’ see: http://en.wikipedia.org/wiki/Zimmermann_Telegram )
Meanwhile, another telecommunication product, wireless telegraphy, vaulted to world attention with the sinking of RMS Titanic. Ships became linked with each other for safety by invisible electro-magnetic signals. And navies, that major investment of all maritime powers, made State control of the new telecommunication system imperative.
Gugielmo Marconi, developer (as more of an experimenter than an inventor) of wireless, was a canny businessman. He patented everything — for example, the tuned circuit — no matter who had discovered it. When WW I began and the U.S. Navy needed the most advanced wireless equipment, there was chagrin in Washington to learn that it could only be obtained, for steep licensing fees, from the Marconi Company. After the Armistice, Owen D. Young, Chairman of General Electric, arranged the purchase of American Marconi and turned it into Radio Corporation of America, a patent monopoly, the exclusive holder of a pool of patents in electronics. One upshot of this move was that RCA and the U.S. Navy got married. The Justice Department smiled upon this shiny new monopoly as strongly as it had frowned upon combination in restraint of trade by AT&T ten years before.
During the ’14-’18 War, interception of enemy radio messages became standard intelligence procedure on the battlefield.
Radio transmission itself changed enormously after the War with the discovery that as one activated higher frequencies [‘short wave’] the range of a radio signal expanded from a few hundred miles to thousands of miles while the power required to generate such a signal declined. World-wide broadcasting began, as did international broadcast propaganda. And, since there’s no preventing unauthorized reception of broadcast signals, governments accommodated this nascent industry by making it illegal to record, reproduce or disseminate the content of broadcasts without permission (and payment), treating that as a violation of property rights. Mark well that idea.
Similarly with cryptography — known and used for centuries but more widely employed in WW I than ever before. In the early 1920s various branches of the U.S. government as well as private companies began improving methods for encrypting/decrypting messages. By the crash of 1929, substantial progress was being made in machine-generated ciphers. Both the U.S. Army and Navy concentrated on cracking the various Japanese military and diplomatic codes, with growing success, as they watched Japan become ever more militaristic and adventurous, with expanding territorial ambitions.
In the ’20s, the U.S. Navy set up a network of radio stations around the Pacific basin. Ostensibly message relay sites for fleet communication, they were also intercepting Japanese ship signals with direction-finding antennas. From the ’30s, as Japan began invading China, Naval Intelligence used high-frequency radio intercepts to track the movements of Japanese units.
In 1941 the Japanese attacked Pearl Harbor.
I refer readers to the research by Robert B. Stinnett, who had been a Navy photographer’s mate during the Pacific War, and an AP photographer for the Oakland Tribune after, into the steps by which FDR maneuvered Japan into the strike upon Pearl Harbor. The book is ‘Day of Deceit‘. Roosevelt proclaimed December 7th a ‘day of infamy’; Stinnett’s title alludes to his own opinion that the President deceitfully, deliberately concealed from his commanders in Hawaii, and everyone else, that an attack was imminent.
FDR did so because he was desperate to help Britain in the war against Germany, but isolationist sentiment in Congress and the nation stood in his way.
He knew that U.S. opinion would change only in response to an outright attack.
The President, who had been an Under-Secretary of the Navy, worked with a small group of naval intelligence officers to implement an eight-point plan, set forth in a memorandum by LCDR Arthur H. McCollum in October 1940. McCollum, head of the Far East desk of the Office of Naval Intelligence, discussed the strategic situation in the Pacific and listed eight actions that could be directed at the Japanese threat:
A. Make an arrangement with Britain for the use of British bases in the Pacific, particularly Singapore
B. Make an arrangement with Holland for the use of base facilities and acquisition of supplies in the Dutch East Indies
C. Give all possible aid to the Chinese government of Chiang-Kai-Shek
D. Send a division of long range heavy cruisers to the Orient, Philippines, or Singapore
E. Send two divisions of submarines to the Orient
F. Keep the main strength of the U.S. fleet now in the Pacific[,] in the vicinity of the Hawaiian Islands
G. Insist that the Dutch refuse to grant Japanese demands for undue economic concessions, particularly oil
H. Completely embargo all U.S. trade with Japan, in collaboration with a similar embargo imposed by the British Empire
Stinnett’s book has been roundly denounced since its publication; he is accused of false reporting, mistaken interpretations, and with being no journalist at all but merely a lowly newspaper photographer. Critics note that during Congressional investigations after the war McCollum testified that he never made any such recommendations. Despite these continuing criticisms, none can deny that items F, G, and H in the list were in fact carried out, and constituted the main forms of pressure — or bait, in the case of shifting the Navy’s main strength to Honolulu — which made the Japanese militarists believe that their only option was an attack.
Contrary to the story we have been told for seventy years, Navy code-breakers had in fact been reading the Japanese foreign office dispatches since early 1940, and in early 1941 succeeded in breaking the Japanese Navy codes as well. In this endeavor, they had material assistance from the British, who had already broken most of the German cipher systems. The story that they only succeeded in 1942, just before the Battle of Midway, is a cover for the true narrative.
Recall some of the events publicly known before Stinnett published:
First, the U.S. embargo against Japanese purchase of U.S. oil and steel. Many people have noted this, and singled it out as a primary cause of bringing the Pacific to a boil, while overlooking that we ourselves made sure the embargo was not rigorously enforced. FDR knew that this would convince the Japanese that our ’embargo’ was hypocritical and not what it purported to be; he gambled that they would interpret this to mean that the U.S. was preparing to attack them.
Next was the diplomatic effort to get the Dutch authorities in Java, Sumatra, etc. to assist us by doing everything possible to delay or obstruct Japanese efforts to secure long-term contracts for oil. The Dutch oil officials collaborated very well, dragging out the talks to the intense anger of their counter-party, right up to the 8th of December 1941.
Last by not least was the re-deployment of all major units of our Pacific Fleet from West Coast harbors and bases at San Diego, Long Beach, San Francisco and Seattle (and even Panama) to Pearl. This was to many serving Navy officers a clear strategic mistake, and a number of them protested it.
Officers who raised these objections were quickly shunted off to obscure assignments. A few who occupied major Pacific commands were relieved and replaced. At least one senior officer, offered the Navy command at Pearl, declined it after giving his own assessment of the situation, remarking that he did not want the blame for what he expected would happen.
Stinnett describes the deliberate effort to keep Adm. Husband E. Kimmel, commanding Pacific Fleet, and Gen. Walter Short, U.S. Army Pacific in Hawaii, ‘out of the loop’ except for some vague alerts only days before the attack. Both were disgraced, degraded and discharged. Kimmel charged, in Congressional hearings during 1942, that he had been made the goat. Many older Americans recall that story . Stinnett is still angry about it. It aimed to preserve utmost secrecy in advance lest the Japanese learn that the U.S. knew what was afoot. It exemplified the prime imperative of secret services: never reveal ones sources and methods.
Finally, the still astonishing coincidence that the Pacific Fleet aircraft carriers, which the attackers expected to find at anchor, departed December 6 to deliver planes to advanced bases further west. How fortunate that the most valuable naval assets were nowhere near Pearl when the bombs and torpedoes began to strike.
For that matter, why is so much still unknown, and why does so much resistance continue to hearing an alternative explanation of events, more than seventy years afterward? Many of the documents Stinnett was able to pry out of government archives had been officially declassified by the early ’90s. FDR, his opponents and detractors are dead. Stinnett was able to locate a handful of ex-Navy people who had been involved and learn their stories; all of them were gone before he published.
The reason why: Sources. And. Methods.
Successfully trick your likeliest enemy into attacking you, monitoring his actions with technological means no one knew you had, and accept a severe blow primarily to evoke the visceral outrage of your own population. At war’s end, transfer the functions and personnel of your Naval Intelligence cryptographic section to a new governmental entity called the National Security Agency, simultaneously enlarging its scope and responsibilities to cover any and all aspects of electronic communications. Destroy any prior documents. Hide its appropriations. Deny that your activities negate citizens’ rights to privacy. Assure the public: if they’re not doing anything wrong, they have nothing to fear.
When pressed, claim to have used your secret powers to forestall some number of attacks, but refuse to disclose any specifics that might compromise your sources and methods.
So, now, our present situation.
Two events have put us where we are: commercializing the Internet, and the World Trade Center attack, from which it flows that our presumptive Fourth Amendment ‘rights’ are not merely ignored, but erased.
Last Tuesday, December 17th, some of the big Internet companies — Google, Microsoft, Apple and others — met with President Obama one week after those companies and other Silicon Valley giants, usually arch rivals, united in calling for reform in government surveillance practices. Several executives, including Ms. Mayer, CEO of Yahoo, expressed concern that foreign countries may now decide to prevent all the user data generated by people in their countries from flowing to the United States. One such law has been proposed in Brazil. The executives said these laws would significantly hurt their businesses and America’s start-up economy. http://www.nytimes.com/2013/12/18/us/
This is reaching back to the origin of ‘privacy’ in English common law: an essential adjunct to a citizen’s privileged Private Property. Or, to spell it out for Americans, the third leg of the famous expression: Life, Liberty and the Making of Money.
Not mentioned in the report is the fact that all these companies are in one way or another making plenty of money exploiting private information they winnow from all forms of internet activity. Not at all different from the kind of Big Data that NSA gathers, except for the uses — commercial marketing — to which they put it.
Who can predict what changes, if any, will now result? Edward Snowden declares that he has achieved his objective. He has bared the details of Sources and Methods for all to see, and leaders of the surveillance establishment have lied about all of it repeatedly.
If the rest of us actually value our privacy, now is our opportunity. Otherwise, Orwell is correct: “If you want to keep a secret, you must keep it from yourself.”
Evan Yoes can be reached at: firstname.lastname@example.org.