Expectation of Privacy
Confessions of a Country Lawyer
In 1971 I went to law school and was introduced to the many mysteries of jurisprudence. One of the first cases that caught my interest was Katz v United States. The defendant, Charles Katz, was arrested by the feds for making book in a public phone booth. It turns out the government recorded Katz by means of a listening device connected to the outside of the booth. They had overheard him making bets from Los Angeles to Boston. The only hope the defense had was to overturn the recordings on appeal because the government had not gotten a warrant before sticking that device on the outside of the public phone booth. Eventually the case got to the Supreme Court where the government argued that they didn’t need a warrant because the cops never entered the phone booth. Mr. Justice Stewart, writing for the majority, was not persuaded and threw out all this wonderful recorded evidence saying the government needed a warrant because when Katz covered those bets in the phone booth he had “a reasonable expectation of privacy.” I remember after studying the case sitting back and wondering what kind of world Justice Stewart grew up in. It sure wasn’t anything like Cumberland, Maine in the 1950's.
I can still remember my mother warning me that nothing I said on the telephone was ever private. To the contrary, I should expect that the whole town would know the jist of any telephone conversation, Not only was there no “expectation of privacy,” just to express the desire for privacy would prompt the question, “What have you got to hide?”
Lest you think I am exercising my rights to exaggerate as developed over decades in the practice of law, let me offer a little detail about Alexander Graham Bell's addition to our modest home on the Tuttle Road. The device in question was inclosed in an oak box about 2 feet tall, a foot wide and 10 inches deep. It was attached to our diningroom wall. The mouth piece was made of steel and stuck out of the front. The ear piece was made of black porcelain and hung in a cradle on the the left side of the box. A crank stuck out of the right side. When you gave that crank a vigorous clockwise turn you were in effect generating an electric jolt which passed through the phone line and rang a bell on Velma Merrill’s switchboard in her front room 3 miles away in Cumberland Center.
Now, when they ran the wires from Velma’s front room down the Tuttle Road they could have run a separate wire to every house, but that would have been expensive. Those old wires were thick copper to accomadate the electric charge generated by our crank and to carry it all the way up to the Center. So as a general rule they ran one wire for every 6 or 8 phones. If you wanted to rent your own wire, you would have to wait till one became available and make a much larger monthly payment. We weren’t “made of money” so we shared a party line with 8 other homes.
This is how it worked. Our phone number was VAlley, 8 ring 1, 2. The VAlley part meant if you were calling us from out of town you would ask your operator for Valley and you would be connected with Velma’s switchboard up to the Center. Once you reached her, you would tell Velma you wanted 8, ring 1, 2. She would oblige by plugging into line 8 and giving her crank one long twist followed by two short. Now eight homes on the Tuttle Road would hear 1 long ring followed by 2 short and all would know it was a call for us. Velma would stay on the line to make sure we answered. If we didn’t, she would offer to take a message for us. If we did answer she could hang up as soon as she knew we had made connection. How soon she’d actually hang up was a much more complicated equation taking into account how busy Velma was, how interesting the call promised to be and quite frankly Velma’s assessment of the town’s need to know. Of course anyone else on the line could also listen in at any point and listen as long as they wished.
From this brief description of the state of our technology, I think you can see that when the Supreme Court said it was reasonable for a person to think what he said on a phone would remain private, they obviously had never met Velma and more importantly they weren't thinking of the party line. In fact they probably asscociated the term with Senator Joe McCarthy who often talked about the "party line." Joe, you might recall, was not an avid defender of the Fourth Amendment or the First for that matter. Tailgunner Joe might well opine that anyone suggesting a citizen had such rights was simply spouting the "party line." In his case the party in party line was “The Party.” The Communist Party which had said their goal was to bury all of us, proving conclusively the Russians had no idea of the cost of a simple funeral in the United States. You can be sure Justice Stewart knew about Joe's Party line, but what he seemed to miss was that the parties on our line had a lot more interest in what we were saying, then the Godless Commies did.
When we heard 1 long ring followed by 2 short we would rush to answer the phone. If we heard 2 long rings followed by 1 short we knew the call was for Aunt Marion down the road and we wouldn’t pick up. But what if the ring was 1 long and 3 short. That meant it was a call for the Andersons and in this case if I had a little time to kill, I might pick up and quietly listen in.
You see young Carl Anderson was a few years ahead of me in school and he was madly in love with Claire, a girl who lived 6 miles away up in West Cumberland. On most school nights, the pain caused by this separation was assuaged by Carl serenading Claire on the phone. After a brief conversation, which was punctuated by long periods of silence, he would put the phone down where it could capture both his voice and the sound of his guitar and the concert would begin. Carl’s singing wasn’t that bad and his strumming was actually O.K. Even better however was Claire’s enthusiastic desire to move the concert to a more intimate setting. But the very best part of listening in on these calls was over hearing the complaints of others on the line who had little patience with young love. Irate fellow party members could be very colorful in expressing their desire for young Carl Anderson to end his woeing of Claire so they could make their own call. Now of course Anderson himself didn’t hear these pleas, remember he had put the phone down so he could play his guitar, but Claire heard these requests and matched the passion of the would be terminators with her own directives that the music critics visit infernal regions. In a time 50 years before Facebook and Twitter, you can only imagine the appeal of this sort of “newsfeed.”
At this point you might be wondering about the etiquette, or lack thereof, in listening to other’s conversations. Admittedly, it was in a sort of gray area. We were taught as youngsters not to listen to other people’s conversations, but this violation was clearly only a misdemeanor. “Don’t go near a hot stove or get mud on the sheets as they hang on the clothesline” those were felonies and violators were guaranteed corporal punishment. The worst you’d get for listening in on the phone was a simple reminder that you shouldn’t do it. To be honest, listening in on the party line wasn’t even a clear violation, because it did not necessarily demonstrate the intent to do something bad. You see a person had to listen in for at least a moment to know if the line was clear before makeing a call, QED: no mens rea. If your call was urgent you might be required to listen longer in order to determine if your neighbor seemed to be on the verge of ending the call. In other words when it came to listening in on the party line it wasn’t a matter never, it was a matter of how long was necessary. The absence of a bright line always presents the danger of the slippery slope and this was certainly the case with the party line.
Now before you get on your high horse about our display of appalling manners, I ask you to try and recall your own youth. As we navigated the dangerous waters between being a powerless child and an adult we all had one empowering grace: our parent’s weaknesses. The most important of these was their love for us and their inclination to be as forgiving with our faults as they were with their own. In the case of the party line, I quickly figured out two things, one, mom and dad’s concern about privacy didn’t extend to families that were always tying up the line. The singing Anderson was in this group. The second was Mom's interest in certain calls trumped her concern with privacy. For example if you said to Mom, “ I was trying to make a call to find out my homework assignment from Whit, when I heard Maud tell someone ….” Mom, no fan of Maud’s judgemental pronouncements, would have much more interest in who Maud was bad mouthing than if I had exceeded the necessary listening interval.
So not only wasn’t there an expectation of privacy , the real rule was, “If its meant to be a secret, don’t say it on the phone,” and that is as good a definition as you will ever hear of the opposite of expectation of privacy. But our own listening in on calls was not the end of phone surveillance in the little town where I grew up. Remember Velma, the operator up to the Center. Now Velma’s switchboard was in her house so we couldn’t see how long she listened in to our calls, but if we listened closely we could hear when she dropped out of our call. Normally we would hear the light click as she got off right away but not if there was anything of interest about the call. Long distance calls from far away, a call from the police in nearby Portland, a call from Doctor McIntire from over in Yarmouth; these calls would keep Velma on the line until she satisfied herself that she had learned all there was to learn.
Now this brings us full circle right to the great conundrum of communications in our modern world. We don’t like the idea that Google knows where we are and what we are doing every moment of the day, but we appreciate the convenience which flows naturally from this lack of privacy. I want to check out movies, I don’t have to tell my smart phone where I am and what theaters near by, Google already knows. If I want to buy a book from Amazon, I don’t have to tell it the kind of book I am interested in, it knows. If I want to check up on someone I went to school with, Facebook probably already knows. So the thing that freaks us out in the abstract is often damn convenient in practice. The same was true with Velma!
I already mentioned that if we failed to answer when Velma tried to put through a call, she would offer to take a message, but that’s not the half of it. She would often tell the caller where we were and offer to put the call though. For example, on Thursday nights some women would get together to do some quilting at the Doughty's. Velma knowing that Mom often joined the group would offer to put the call through to the Doughty’s: think of this as intelligent call forwarding. Or she might ask someone calling Dad, if it was his sister “Tinny” calling and if the answer was yes, she'd pass on a message that was just for her.
That could be darn convenient, but it wasn’t the best of services that Velma provided. Velma did listen in to all or part of many calls but she was not selfish with what she learned. She would share with anyone who called and asked. I can recall my mother wondering why the hearse/ambulance was parked in a driveway down the road from our house so she called Velma and asked. Velma told Mom that Byron Jones had shot himself while his wife Mode was at church. Likewise when mom wanted to know when the oldest Blanchard girl would be coming to visit her aunt this summer she just called Velma. Velma always knew and gladly handed on the information.
Mom never had an interest in personal gossip and she generally had a very low opinion of people who pretended to have led perfect lives. As a consequence, she never called Velma to get the low down on someone on the VAlley exchange, so I don’t know if Velma would have readily shared that sort of thing. I am guessing no, because I never heard a friend pass on dark gossip that his mom had picked up from Velma. That said, Velma’s husband had his hand in about everything that went on in town and it’s hard to imagine that if Mr. Katz, the bookie in the phone booth, applied for credit at the Village store that the proprietor would not be informed that Mr. Katz might have a lot of unreported income and unseen risks.
I suspect that most folks today would choose to have Velma know their secrets, over the the government or Google. Things often appear smaller than they are in life’s rear view mirror. But in that distant world past, there was often only one bank in town, one grain dealer, one building supply owner and the latter two sat on the board of the former. If a person in town violated the rules of this group, they could find all their credit cut off. It was a totalitarian regime as powerful as your ties to the town. If you owned a farm or a business in town they controlled your life in a way that any government could only envy.
Now these folks didn’t depend on Velma alone for their background reports. A quick check with Phillis at the library would tell them what books you’d taken out. Everyone knew how often you went to church and if you were a reliable Congregationalist or a more questionable Baptist. We won’t go into Catholics because there were very few which was considered a blessing because we didn’t need the Pope running things. The town fathers and mothers knew how much beer you bought at the store, and if you would sometimes visit Brown’s Garage when you needed a bottle of liquor on Sunday. They knew all this no just about you, but your parents and your grand parents, and remember these folks were Congregationalists, the church of the Pilgrims and the Puritans. Their Church was founded on the belief that it was the obligation or the congregation to take an active interest in the physical and spiritual needs for all members of the the community. If someone in town lost a job these old values would quickly led to a weekly delivery of food and a little money to the afflicted family. Likewise, if a young high school girl got pregnant, she would quickly be expelled from school before her affliction became contagious.
The motives of those kind hearts and gentle people of my home town were certainly more benign than Hitler’s Gestapo or Stalin’s KGB, but I am afraid my neighbors felt no less empowered by their right to reach into the most private corners of a persons life and to use that information to protect the communities values and the people who enforced them. In short, in the quiet village where I grew up, if I wanted an expectation of privacy I got out of town. Maybe that is what worries us about our brave new world of 2015, the trip off the grid involves more sacrifice and is a lot tougher journey than than the 35 cent fare and my hour long bus ride to Portland. Maybe the young person today misses the sense of liberation I felt when I stepped off the bus on Congress Street in Portland, far from Velma's listening post.
In 1971 I went to law school and was introduced to the many mysteries of jurisprudence. One of the first cases that caught my interest was Katz v United States. The defendant, Charles Katz, was arrested by the feds for making book in a public phone booth. It turns out the government recorded Katz by means of a listening device connected to the outside of the booth. They had overheard him making bets from Los Angeles to Boston. The only hope the defense had was to overturn the recordings on appeal because the government had not gotten a warrant before sticking that device on the outside of the public phone booth. Eventually the case got to the Supreme Court where the government argued that they didn’t need a warrant because the cops never entered the phone booth. Mr. Justice Stewart, writing for the majority, was not persuaded and threw out all this wonderful recorded evidence saying the government needed a warrant because when Katz covered those bets in the phone booth he had “a reasonable expectation of privacy.” I remember after studying the case sitting back and wondering what kind of world Justice Stewart grew up in. It sure wasn’t anything like Cumberland, Maine in the 1950's.
I can still remember my mother warning me that nothing I said on the telephone was ever private. To the contrary, I should expect that the whole town would know the jist of any telephone conversation, Not only was there no “expectation of privacy,” just to express the desire for privacy would prompt the question, “What have you got to hide?”
Lest you think I am exercising my rights to exaggerate as developed over decades in the practice of law, let me offer a little detail about Alexander Graham Bell's addition to our modest home on the Tuttle Road. The device in question was inclosed in an oak box about 2 feet tall, a foot wide and 10 inches deep. It was attached to our diningroom wall. The mouth piece was made of steel and stuck out of the front. The ear piece was made of black porcelain and hung in a cradle on the the left side of the box. A crank stuck out of the right side. When you gave that crank a vigorous clockwise turn you were in effect generating an electric jolt which passed through the phone line and rang a bell on Velma Merrill’s switchboard in her front room 3 miles away in Cumberland Center.
Now, when they ran the wires from Velma’s front room down the Tuttle Road they could have run a separate wire to every house, but that would have been expensive. Those old wires were thick copper to accomadate the electric charge generated by our crank and to carry it all the way up to the Center. So as a general rule they ran one wire for every 6 or 8 phones. If you wanted to rent your own wire, you would have to wait till one became available and make a much larger monthly payment. We weren’t “made of money” so we shared a party line with 8 other homes.
This is how it worked. Our phone number was VAlley, 8 ring 1, 2. The VAlley part meant if you were calling us from out of town you would ask your operator for Valley and you would be connected with Velma’s switchboard up to the Center. Once you reached her, you would tell Velma you wanted 8, ring 1, 2. She would oblige by plugging into line 8 and giving her crank one long twist followed by two short. Now eight homes on the Tuttle Road would hear 1 long ring followed by 2 short and all would know it was a call for us. Velma would stay on the line to make sure we answered. If we didn’t, she would offer to take a message for us. If we did answer she could hang up as soon as she knew we had made connection. How soon she’d actually hang up was a much more complicated equation taking into account how busy Velma was, how interesting the call promised to be and quite frankly Velma’s assessment of the town’s need to know. Of course anyone else on the line could also listen in at any point and listen as long as they wished.
From this brief description of the state of our technology, I think you can see that when the Supreme Court said it was reasonable for a person to think what he said on a phone would remain private, they obviously had never met Velma and more importantly they weren't thinking of the party line. In fact they probably asscociated the term with Senator Joe McCarthy who often talked about the "party line." Joe, you might recall, was not an avid defender of the Fourth Amendment or the First for that matter. Tailgunner Joe might well opine that anyone suggesting a citizen had such rights was simply spouting the "party line." In his case the party in party line was “The Party.” The Communist Party which had said their goal was to bury all of us, proving conclusively the Russians had no idea of the cost of a simple funeral in the United States. You can be sure Justice Stewart knew about Joe's Party line, but what he seemed to miss was that the parties on our line had a lot more interest in what we were saying, then the Godless Commies did.
When we heard 1 long ring followed by 2 short we would rush to answer the phone. If we heard 2 long rings followed by 1 short we knew the call was for Aunt Marion down the road and we wouldn’t pick up. But what if the ring was 1 long and 3 short. That meant it was a call for the Andersons and in this case if I had a little time to kill, I might pick up and quietly listen in.
You see young Carl Anderson was a few years ahead of me in school and he was madly in love with Claire, a girl who lived 6 miles away up in West Cumberland. On most school nights, the pain caused by this separation was assuaged by Carl serenading Claire on the phone. After a brief conversation, which was punctuated by long periods of silence, he would put the phone down where it could capture both his voice and the sound of his guitar and the concert would begin. Carl’s singing wasn’t that bad and his strumming was actually O.K. Even better however was Claire’s enthusiastic desire to move the concert to a more intimate setting. But the very best part of listening in on these calls was over hearing the complaints of others on the line who had little patience with young love. Irate fellow party members could be very colorful in expressing their desire for young Carl Anderson to end his woeing of Claire so they could make their own call. Now of course Anderson himself didn’t hear these pleas, remember he had put the phone down so he could play his guitar, but Claire heard these requests and matched the passion of the would be terminators with her own directives that the music critics visit infernal regions. In a time 50 years before Facebook and Twitter, you can only imagine the appeal of this sort of “newsfeed.”
At this point you might be wondering about the etiquette, or lack thereof, in listening to other’s conversations. Admittedly, it was in a sort of gray area. We were taught as youngsters not to listen to other people’s conversations, but this violation was clearly only a misdemeanor. “Don’t go near a hot stove or get mud on the sheets as they hang on the clothesline” those were felonies and violators were guaranteed corporal punishment. The worst you’d get for listening in on the phone was a simple reminder that you shouldn’t do it. To be honest, listening in on the party line wasn’t even a clear violation, because it did not necessarily demonstrate the intent to do something bad. You see a person had to listen in for at least a moment to know if the line was clear before makeing a call, QED: no mens rea. If your call was urgent you might be required to listen longer in order to determine if your neighbor seemed to be on the verge of ending the call. In other words when it came to listening in on the party line it wasn’t a matter never, it was a matter of how long was necessary. The absence of a bright line always presents the danger of the slippery slope and this was certainly the case with the party line.
Now before you get on your high horse about our display of appalling manners, I ask you to try and recall your own youth. As we navigated the dangerous waters between being a powerless child and an adult we all had one empowering grace: our parent’s weaknesses. The most important of these was their love for us and their inclination to be as forgiving with our faults as they were with their own. In the case of the party line, I quickly figured out two things, one, mom and dad’s concern about privacy didn’t extend to families that were always tying up the line. The singing Anderson was in this group. The second was Mom's interest in certain calls trumped her concern with privacy. For example if you said to Mom, “ I was trying to make a call to find out my homework assignment from Whit, when I heard Maud tell someone ….” Mom, no fan of Maud’s judgemental pronouncements, would have much more interest in who Maud was bad mouthing than if I had exceeded the necessary listening interval.
So not only wasn’t there an expectation of privacy , the real rule was, “If its meant to be a secret, don’t say it on the phone,” and that is as good a definition as you will ever hear of the opposite of expectation of privacy. But our own listening in on calls was not the end of phone surveillance in the little town where I grew up. Remember Velma, the operator up to the Center. Now Velma’s switchboard was in her house so we couldn’t see how long she listened in to our calls, but if we listened closely we could hear when she dropped out of our call. Normally we would hear the light click as she got off right away but not if there was anything of interest about the call. Long distance calls from far away, a call from the police in nearby Portland, a call from Doctor McIntire from over in Yarmouth; these calls would keep Velma on the line until she satisfied herself that she had learned all there was to learn.
Now this brings us full circle right to the great conundrum of communications in our modern world. We don’t like the idea that Google knows where we are and what we are doing every moment of the day, but we appreciate the convenience which flows naturally from this lack of privacy. I want to check out movies, I don’t have to tell my smart phone where I am and what theaters near by, Google already knows. If I want to buy a book from Amazon, I don’t have to tell it the kind of book I am interested in, it knows. If I want to check up on someone I went to school with, Facebook probably already knows. So the thing that freaks us out in the abstract is often damn convenient in practice. The same was true with Velma!
I already mentioned that if we failed to answer when Velma tried to put through a call, she would offer to take a message, but that’s not the half of it. She would often tell the caller where we were and offer to put the call though. For example, on Thursday nights some women would get together to do some quilting at the Doughty's. Velma knowing that Mom often joined the group would offer to put the call through to the Doughty’s: think of this as intelligent call forwarding. Or she might ask someone calling Dad, if it was his sister “Tinny” calling and if the answer was yes, she'd pass on a message that was just for her.
That could be darn convenient, but it wasn’t the best of services that Velma provided. Velma did listen in to all or part of many calls but she was not selfish with what she learned. She would share with anyone who called and asked. I can recall my mother wondering why the hearse/ambulance was parked in a driveway down the road from our house so she called Velma and asked. Velma told Mom that Byron Jones had shot himself while his wife Mode was at church. Likewise when mom wanted to know when the oldest Blanchard girl would be coming to visit her aunt this summer she just called Velma. Velma always knew and gladly handed on the information.
Mom never had an interest in personal gossip and she generally had a very low opinion of people who pretended to have led perfect lives. As a consequence, she never called Velma to get the low down on someone on the VAlley exchange, so I don’t know if Velma would have readily shared that sort of thing. I am guessing no, because I never heard a friend pass on dark gossip that his mom had picked up from Velma. That said, Velma’s husband had his hand in about everything that went on in town and it’s hard to imagine that if Mr. Katz, the bookie in the phone booth, applied for credit at the Village store that the proprietor would not be informed that Mr. Katz might have a lot of unreported income and unseen risks.
I suspect that most folks today would choose to have Velma know their secrets, over the the government or Google. Things often appear smaller than they are in life’s rear view mirror. But in that distant world past, there was often only one bank in town, one grain dealer, one building supply owner and the latter two sat on the board of the former. If a person in town violated the rules of this group, they could find all their credit cut off. It was a totalitarian regime as powerful as your ties to the town. If you owned a farm or a business in town they controlled your life in a way that any government could only envy.
Now these folks didn’t depend on Velma alone for their background reports. A quick check with Phillis at the library would tell them what books you’d taken out. Everyone knew how often you went to church and if you were a reliable Congregationalist or a more questionable Baptist. We won’t go into Catholics because there were very few which was considered a blessing because we didn’t need the Pope running things. The town fathers and mothers knew how much beer you bought at the store, and if you would sometimes visit Brown’s Garage when you needed a bottle of liquor on Sunday. They knew all this no just about you, but your parents and your grand parents, and remember these folks were Congregationalists, the church of the Pilgrims and the Puritans. Their Church was founded on the belief that it was the obligation or the congregation to take an active interest in the physical and spiritual needs for all members of the the community. If someone in town lost a job these old values would quickly led to a weekly delivery of food and a little money to the afflicted family. Likewise, if a young high school girl got pregnant, she would quickly be expelled from school before her affliction became contagious.
The motives of those kind hearts and gentle people of my home town were certainly more benign than Hitler’s Gestapo or Stalin’s KGB, but I am afraid my neighbors felt no less empowered by their right to reach into the most private corners of a persons life and to use that information to protect the communities values and the people who enforced them. In short, in the quiet village where I grew up, if I wanted an expectation of privacy I got out of town. Maybe that is what worries us about our brave new world of 2015, the trip off the grid involves more sacrifice and is a lot tougher journey than than the 35 cent fare and my hour long bus ride to Portland. Maybe the young person today misses the sense of liberation I felt when I stepped off the bus on Congress Street in Portland, far from Velma's listening post.