Federal Internet Law & Policy
An Educational Project
Common Carriers: Privacy Dont be a FOOL; The Law is Not DIY

- Common Carrier
- History
- Theory
- -Bailment
- - Market Power / Essential
- Duties
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- -Interconnection
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-Telecom Carriers
- Telephone
- - AT&T

Common Carriage

This Section Is Under Construction.


Privacy is a core value for public networks, with roots deep within common carriage.

During revolutionary times, Benjamin Franklin had a problem. Had been appointed Postmaster of the Colonies mail service. But the mail service was not to be trusted. A post office during those times tended to pretty much a bag hanging in the town tavern. Posting a letter by dropping it in the bag meant it was available for purusal by anyone else in the tavern. When the letter departed the tavern, it was then vulnerable to deep packet inspection by the nasty British - who though surveillance of the communications network was an excellent way to do intillegence gathering on colonial terrorists (aka Founding Fathers). The communications network was vulnerable and those who used the network put themselves potentially at risk. Franklin knew that in order for the network to succeed - and in order for colonial businesses and discourse to succeed - the network had to be trusted. Communications through the network had to be private.

This lesson would be repeated as the network evolved from a postal network, to an electronic telegraph, to telephone, to the Internet, and beyond.

As the telegraph network created a communications revolution, the value of privacy in the public network had already matured. But the legacy value had to evolve to fit the new network. MORE

The telephone network likewise struggled as it too innovated and introducted its communications revolution. The telephone went through typical stages of adoption, moving from a novelty of the select few businesses, to widely deployed amoung businesses, and finally to a universal service available to all. But as the telephone moved from novelty to utility, the value of privacy had to evolve. Fourth Amendment privacy protection traditionally protected against the search and seizure of papers within one's house. Therefore, thought the police, if we are not inside the house, we can listen into telephone conversations all we want (just like the nasty British). During prohibition, suspecting Olmstead to be a bootlegger, law enforcement installed wiretaps outside of Olstead's home and business. After his conviction, Olmstead challenged the wiretaps as Fourth Amendment violations. The Supreme Court in a rigid analysis analysis failed to transform Benjamin Franklin's wisedom to evolve with historical progress. In a famous dissent, however, Justice Brandeis articulated the necessity of privacy in the communications network.

When the Fourth and Fifth Amendments were adopted, "the form that evil had theretofore taken," had been necessarily simple. Force and violence were then the only means known to man by which a Government could directly effect self-incrimination. It could compel the individual to testify - a compulsion effected, if need be, by torture. It could secure possession of his papers and other articles incident to his private life - a seizure effected, if need be, by breaking and entry. Protection against such invasion of "the sanctities of a man's home and the privacies of life" was provided in the Fourth and Fifth Amendments by specific language. But "time works changes, brings into existence new conditions and purposes." Subtler and more far-reaching means of invading privacy have become available to the Government. Discovery and invention have made it possible for the Government, by means far more effective than stretching upon the rack, to obtain disclosure in court of what is whispered in the closet. 

[Olmstead, Brandeis dissent, 473]

While the evolution of criminal law to keep pace with privacy wisedom struggled during decades of national tribulation (the Depression, World War II), civil privacy progressed. Section 605 of the Communications Act barred telephone companies from easvesdropping on communications for any reason other than those incidents necessary for the operation and protection of the network. See also 47 U.S.C. 222 (CPNI).

After Brandeis' dissent, history occured: The Depression and World War II. The courts grappled with privacy in the network but the necessity of the public defense overshadowed. When the country emerged from decades of trial, once again the courts struggled to bring traditional wisedom in alignment with technological progress. By the 1960s, the telephone had become prolific in business and society, and the idea that the individual lacked privacy was an anathema. In 1968, the Supreme Court in Katz adopted Brandeis' wisedom and held that the individual has the right to privacy as against the nasty government.

Once against technology innovated, and once again legal wisedom had to evolve. By the 1980s, computer networks were breaking onto the scene, but computer networks were not covered by the Wiretap Act. Therefore Congressed passed the Electronic Communications Privacy Act.

Technological progress hasnt stopped. The Internet has moved from a narrowband application capable of small data transimissions, to the broadband Internet pervassively present in our lives. While the law has failed so far to evolve, the recognition of the necessity is ever present. Prof. Kevin Werbach testified before Congress that in order for Cloud computing to be successful, their had to be trust in the network. CITATION

  • Written statement of Kevin Werbachpdf, Associate Professor of Legal Studies & Business Ethics, The Wharton School, University of Pennsylvania, Hearing on ECPA Reform and the Revolution in Cloud Computing, House Judiciary Committee, Subcommittee on the Constitution, Civil Rights and Civil Liberties, p. 6-8 (Sept. 23, 2010)
  • This is a rich dialog that involves many values and public policy objectives. It is in part a discussion of personal liberty; it is in part a discussion of government restraint (the nasty government); and it is also in part a discussion of the necessary characteristics of a public communications network. The tradition of common carrier seeks to ensure the viability and utility of the public network, for the benefit of the public. For the network to suceed, and for business to thrive and discourse to transpire, people must trust the network - privacy must be assured. [Ohm, The Rise and Fall of Invasive ISP Surveillance (privacy "is a pillar of the concept of 'common carriage'")]