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Ethan Leicht

Professor Babcock

Rhetoric and Civic Life

21 November 2021

The Death of Privacy in Modern America

The concept of privacy has long been important in American culture. It is interesting to

ponder what exactly privacy means to us as Americans. Private property specifically is perhaps

easier to conceptualize, as it is accompanied by tangible visual aids—houses, cars, land, etcetera.

Privacy of personal information is a more abstract idea, yet remains pervasive in political

discourse and social etiquette. It seems that we regard personal information as a form of private

property that is to be protected from intruders. We carry an impulse, whether engrained via

biology or socialization, to draw the curtain, distrust the stranger, and shutter the details of our

lives from observers of the outside world. Or, at least, we did in the past. We can trace the history

of privacy in America through an examination of the intersecting realms of government policy,

technology, and historical events. Through such examination, we find that privacy is effectively

dead in modern life, and has been weakening since the turn of the 20th century. In the face of this

realization, a significant paradigm shift becomes apparent. Americans today value their privacy

less today than in the past.

To explore this claim, we must first visit the colonial and post-revolutionary era of

American history. At this time, the thirteen colonies on the Atlantic coast of North America were

under the control of the British crown. The British government did many things that angered the

colonists; taxation was a major grievance, but also was privacy intrusion. For example, to

enforce trade and navigation laws, courts authorized the use of writs of assistance, general search
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warrants permitting British officers to search any house for smuggled goods without specifying

either the house or goods. Such intrusions angered the colonists. In 1761, a group of Boston

merchants attacked the legality of the writs in court. When similar warrants were reauthorized by

the Townshend Acts of 1767, they were challenged for five years in every superior court in the

thirteen colonies (Encyclopedia Britannica). Another grievance related to privacy was the

quartering of British soldiers in colonists’ private buildings. The First Quartering Act of 1765

permitted soldiers of the standing British army to stay in colonists’ stables, inns, and taverns. The

Second Quartering Act of 1774 extended the soldiers’ welcome to colonists’ barns, sheds, and

unoccupied homes. The colonists again were angered by these circumstances, branding the latter

piece of legislation as one of the “intolerable acts” imposed upon them by the British

government. Thomas Jefferson would even go on to reference it in the Declaration of

Independence (Jefferson).

This brings us to an important point: the colonists were unhappy with, among other

things, the insecurity of their privacy, so they took action to rectify the problem—in the form of

armed revolution. They wrestled away the political grasp of Britain and established a new

government with explicit protections of citizens’ privacy. The Third Amendment prohibits the

quartering of soldiers in private homes, and the Fourth Amendment prohibits the search and

seizure of private property without probable cause and a warrant specifying the place and items

to be searched (“United States of America Constitution”). The value of privacy was built into the

very bedrock of our system of governance.

We can also look to the early days of the U.S. postal service in the late 18th century to

find evidence of the value Americans placed on privacy. As difficult as it is for modern

Americans to imagine, mail was the only communications technology of the day. Great care was
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taken to ensure the privacy of communications through the mail. The Postal Act of 1792 made it

illegal for postal officials to open mail, with offenders facing up to six months in prison and a

$300 fine, a hefty sum at that time. The act also made it illegal to steal mail from a delivery

person or post office, with death included among the possible punishments (National

Constitution Center). Once again, Americans’ value of their privacy was made adamantly clear

through the codification of law.

Attitudes about the value of privacy remained strong in America throughout the 19th

century. A varied line of evidence supports this claim.

We can first point to the maxim “a man’s house is his castle,” which was strongly

believed at the time. While derived from a long history of English common law, the idea was

widely applied during this era of American history. The right to exclude others from the private

dwelling place of the family, which was viewed as the essential unit of a stable society, was

absolute. In many cases, it usurped the property rights of others, including landlords entering to

make repairs, owners of goods seeking to retrieve them, and creditors sending sheriffs to collect

payments. There were even instances of courts proclaiming unlawful intrusion in the cases of a

host entering a bedroom provided for a houseguest and an unqualified assistant entering the

bedchamber of a woman in childbirth. The right to defend one’s home from trespassers—even by

means of deadly force—was viewed by the public as absolute, and was often exercised. In

addition, privacy intrusions that fell short of physical trespass, including eavesdropping and

“peeping Toms,” were subject to the penalties of criminal law (“Right to Privacy in Nineteenth

Century America” ). Privacy within the home was very precious to Americans at this time.

When we shift our focus to personal information, we find that 19th century Americans

were apt to keep theirs private. Take, for instance, the U.S. census. As decades passed, the scope
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of questions broadened, causing public concern. In response, census takers were instructed to

treat returns as confidential, no longer posting them in public spaces. In 1889, the government

enacted a penalty for disclosing returns (“A History of Census Privacy Protections”). Despite

these protections, Americans still refused to answer certain questions. For example, when the

1890 census included new questions about secret diseases and home mortgages, the public

protested vehemently, with many refusing to provide any census information at all. With that, the

government eliminated the controversial inquiries. A similar situation arose with the income tax

enacted by President Abraham Lincoln during the Civil War, which necessitated that the

government collect citizens’ financial information. When the government allowed the press

access to this information, the subsequent public outrage killed the income tax and the prospect

of any tax like it for the next fifty years. Time and time again, Americans displayed great

resistance to intrusion upon their private affairs.

In addition to the census and income tax, the press, known for its sensationalist reporting

during the period, was of particular concern to the populace. Americans feared personal attack;

thus, the maxim applied in the legal world became “the greater the truth, the greater the libel.” To

deem a statement libelous, courts simply had to determine that its publisher acted with impure

motives; its truthfulness was a secondary consideration (“Right to Privacy in Nineteenth Century

America”). This lower standard bolstered the protection of Americans’ privacy from exposure by

the press, again reflecting the value placed upon privacy.

We can also look at the communications technology of the period to gage just how

important privacy was to Americans. While the Postal Act of 1792 offered substantial privacy

protections, the security of the mail was further strengthened in the 1878 Supreme Court case Ex

parte Jackson. Petitioner Jackson was arrested for violating a federal law which prohibited the
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circulation of literature concerning lotteries in the mail. The Court ruled that the government

could not enforce the statute because opening sealed mail required a warrant issued in

compliance with the Fourth Amendment (Densai). Even so, the mail was no longer the only way

for people to communicate. The 19th century ushered in the telegraph, which became widely

used but created great privacy concerns among the public. In their early days, telegrams needed

to be transcribed numerous times by cable operators who would view the contents of the

telegram before the intended recipient. Wiretapping, a skill learned by military telegraphers

during the Civil War, also posed a serious threat. Electrical telegraph lines could be compromised

and messages intercepted by intruders. To alleviate the concerns of the public, action was taken

in both the private and public sectors to secure telegram confidentiality. Many cable companies

further encrypted messages that were already encoded in morse using a cipher, an intricate

algorithm which converted plaintext to ciphertext. Companies also required employees to sign

confidentiality agreements preventing them from disclosing the contents of private messages

retained on file (“The World's First Hack...”). Many state governments enacted statutes which

further prohibited such disclosure. In addition, some states explicitly criminalized wiretapping,

while others effectively banned the practice with laws against interference with telegraph

company property. Once again, we see that keeping communications private was an important

priority for Americans.

However, it should be noted that the privacy of the telegraph was never as strong as that

of the mail. During the Civil War, cable companies willingly turned over messages to the War

Department in its effort to uncover treasonous plots. To settle a contested election in 1876,

Western Union, the nation’s dominant telegraph company, delivered 30,000 telegrams to a Senate

committee. Western Union would afterwards propose a bill applying the Fourth Amendment to
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telegrams as Ex parte Jackson did to mail. Although the bill was defeated in Congress,

restrictions were placed on the manner in which telegrams were subpoenaed in legal

proceedings. The Supreme Court never commented on the issue, but every lower court that faced

the question of telegraph confidentiality rejected analogies to the mail (Densai). It is here we

begin to see the decline of privacy as a central priority in American life.

Now we move into the latter half of our nation’s history, where we witness the shift away

from Americans regarding privacy as the utmost priority. We can begin by identifying

bureaucratic and judicial developments which were detrimental to civilian privacy during the

20th century.

A significant bureaucratic change which affected privacy was the rise of the

administrative state, a trend beginning in the Progressive Era of the early 20th century. This

phenomenon resulted in the creation of massive systems of public records containing information

about Americans. The Social Security System, created in 1935, maintained records about all

employed individuals’ earnings. To do so, it assigned a unique, nine-digit Social Security number

to each citizen which, contrary to assurances from government officials at the time, would be

used as a personal identifier for a variety of other purposes (Puckett). Instead of fighting these

policies in order to shield personal information and identity, Americans sat idly by.

Several Supreme Court rulings stand out as having profound implications for privacy. For

example, how did courts deal with privacy issues related to the newly-invented telephone? In the

1928 case Olmstead v. United States, the Supreme Court determined that the Fourth Amendment

did not require a warrant for the government to intercept private telephone calls. This would

allow entities like the FBI, which was established in 1908, to henceforth surveil Americans. Or,

to look at another example, how did the courts deal with privacy issues related to investigations
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conducted during the Red Scare of the 1950s? In In Barenblatt v. United States, the Court upheld

the sentence of a person jailed for refusing to answer questions from the House Un-American

Activities Committee, or HUAC. The HUAC was a Congressional task force which forced

citizens to testify publicly about their Communist Party ties and disclose the names of others

involved (Solove). Instead of fighting these rulings in order to keep phone calls and group

affiliations private, Americans again sat idly by.

Undoubtedly, the 20th and 21st centuries were fraught with crisis and tragedy. Two

monumental World Wars took place during the 20th century, and both had drastic impacts on the

privacy of citizens on the domestic front. During World War I, the federal government registered

around half a million German-speaking immigrants in America as “enemy aliens.” The

government spied upon many of these “enemy aliens,” sent over 6,000 to internment camps, and

seized their property, ultimately amassing assets worth more than half a billion dollars—a sum

nearly equal to the entire federal budget before the war (Gross). During World War II, Japanese

Americans received similar designation and treatment. On December 7th, 1941, just hours after

the bombing of Pearl Harbor, the FBI arrested and froze the assets of over 1,000 Japanese

American community and religious leaders without any evidence of treason, in addition to

searching the homes and seizing the property of thousands more. Soon after, President Franklin

D. Roosevelt issued Executive Order 9066, which forcibly moved 120,000 Japanese Americans,

the majority of whom were citizens, to isolated internment camps where they could be closely

monitored (History.com). The egregious wartime treatment of Germans and Japanese during

World World I and II represented major violations of civilian privacy. And the worst part? The

majority of Americans supported these government measures. In fact, a 1942 survey reveals that

approximately half of the population believed at the time that Japanese Americans should not
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even be allowed to return home from the internment camps after the war ended (Swift)

Americans demonstrated complete disregard for the sanctity of the privacy of their peers, instead

prioritizing national security during a time of crisis.

A similar phenomenon happened in the aftermath of the September 11th attacks in 2001.

Just 45 days after the tragedy that occurred at the World Trade Center in New York City,

President George W. Bush signed into law the Patriot Act, which would have broad privacy

implications. In the name of counter-terrorism, the act granted the government broad surveillance

powers over the American populace. Government officials, without the approval of a judge,

could monitor and maintain the phone records, computer records, banking history, and credit

card history of citizens. It also authorized “sneak and peek” searches, which allowed law

enforcement, after obtaining a warrant, to search homes and offices and document and seize

property without first notifying the owner (“Surveillance Under the Patriot Act”). That wasn’t

all. As we are all well aware, airport security also became far more invasive. Americans would

now undergo intensive scans of their luggage and their person before entering the airport

terminal. Despite the privacy violations posed by these measures, Americans overwhelmingly

supported them when they were adopted, again prioritizing national security over privacy.

Finally, this brings us to today. Americans’ disregard for their privacy has perhaps never

been stronger. Needless to say, the advent of the Internet has created a wealth of opportunity for

privacy invasion. We are constantly using online services to communicate with others, acquire

information, and aid us in just about every task we complete in a given day. Any time we type in

a search engine query, post on social media, connect to a public Wifi network, or plug in a

destination on the GPS, our data is being tracked and sold to corporations, marketers, investors,

and individuals to whom it is extremely valuable. Products like Gmail and Instagram do not cost
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money. Instead, consumers pay with their personal data, which is used to target them with

advertisements. In fact, companies like Google and Facebook can even target advertisements

based on personally-identifiable information, like the consumer’s name—a practice that was

considered taboo at the dawn of the Internet, but is now commonplace (Matsakis) Wireless

carriers have also carved out a slice of the data-selling market for themselves. In 2019, several

large providers including T-Mobile, AT&T, Verizon, and Sprint were caught striking deals with

middlemen companies who were providing users’ cell phone location data to questionable third

parties (Valentino-Devries). In fact, in 2018, it was estimated that American companies alone

would spend upwards of $19 billion acquiring and analyzing consumer data—and this figure is

only growing (“U.S. Firms to Spend Nearly $19.2 Billion…”).

It would seem that now is the time the government should step in and regulate as it has

done in the past. But this is not happening. The United States currently does not have a singular

law that covers the privacy of all types of data. Instead, a slew of laws with acronyms like

HIPAA, FCRA, FERPA, GLBA, ECPA, COPPA, and VPPA protect only specific types of data in

specific types of circumstances, many of which have become outdated. In most states, companies

and third party brokers can legally use, share, or sell a user’s data without notifying that user,

even if an outside data breach occurs. In fact, only three of the fifty states have comprehensive

data privacy laws: California, Colorado, and Virginia (Klosowski). Observe how legal

protections of data privacy pale in comparison to those of the mail and telegraph.

However, this can’t all be laid at the feet of the tech giants. Americans are perfectly

complicit in the handing over of their personal data. For one, we all use and enjoy the free

services that cost us our privacy. After all, where would we be without Google services alone?

Search, Maps, and Docs are all tools that many of us use on a daily basis. Droves of young
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people constantly share their location via Snapchat’s Snap Maps. And we are all guilty of

immediately accepting cookies, terms and conditions, and privacy policies without a close read

or a second thought. Americans do not engage in these behaviors out of ignorance; we know

what we are up to and we know what is at stake. A recent Pew Research Center poll confirms

this assertion. 93% of adults said that being in control of who can get information about them is

important. Yet, around 70% said they were not confident that records of their activity maintained

by online advertisers, social media sites, or search engine providers will remain private and

secure. Less than 10% said they were very confident that government agencies, phone

companies, or credit card companies will be able to protect their data. Despite this overwhelming

expression of worry and unease, 91% of adults had not made any changes to their cell phone or

Internet use to avoid having their activities tracked, and only 10% had encrypted their

communications or used a service that allowed them to browse the Internet anonymously, such as

a proxy server or VPN (Madden, Lee). It is clear from this statistical disparity that while

Americans claim to care about their personal privacy, they do not care enough to do anything to

prevent its demise.

Although it can be a challenging topic, one other recent event must be recognized as

having grave implications for the future of Americans’ privacy: the COVID-19 pandemic. To

track the spread of the disease, health officials collected vast amounts of medical data on

American citizens. Cutting-edge technology was deployed in the effort to curb the disease’s

spread, including apps for mobility and proximity analysis, contact tracing through credit card

usage history, and crowd analysis using cellular networks data (Majeed). Additionally, to help

enforce masking mandates, artificial intelligence has been developed to match the face of a

person on camera with their identity and determine whether or not they are wearing a mask
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(“Facial Recognition Identifies People Wearing Masks”). The COVID-19 vaccine has also raised

concerns about information privacy. In order to comply with President Joe Biden’s recent

vaccination mandates, the vaccination status of employees working for the government and large

businesses must be disclosed. Here, we can again see Americans in the modern era placing other

priorities, such as public health, above privacy.

In conclusion, it is clear that a shift has occurred in how we as Americans think about our

privacy. Through varied analysis of government policy, communications technology, and

historical events across nearly 300 years of our nation’s history, this shift can be identified as

occurring between the 19th and 20th centuries. As crises struck and technology advanced,

personal privacy declined, and the importance of its preservation and protection was steadily

replaced by other priorities: national security; public health; money; convenience. To be sure,

there is a healthy debate to be had about the proper balance of these priorities. However, one can

not help but feel that we have lost something valuable, as it was held in such high esteem by the

founders of our nation and the generations of Americans that came before us. Privacy is dead,

and we have killed it. We have watched complacently as it has slipped from our grasp. Perhaps

next time we sit down at our computer or pull out our smartphone, we will pause for a moment

of honest introspection. Perhaps we will ask ourselves: how much do we truly value our privacy

in the modern age?

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