Phillip W. Magness

Historian – 19th century United States

An abolitionist’s take on the NSA email surveillance program

In light of the recent revelations about the NSA’s massive email spying programs, I’m reminded of this passage from my favorite abolitionist Lysander Spooner in his own response to the postal monopoly of his day. Keep in mind that at the time he wrote this, the privacy of the mails was a contentious political issue. In 1835 following an abolitionist mass-mailing campaign to disseminate anti-slavery pamphlets by mailing them as letters to recipients in the slave states, Andrew Jackson called upon Congress to adopt laws that would permit federal surveillance, interception, and prohibition of so-called “incendiary” materials sent by letter. In a message to Congress Jackson deemed it “proper for Congress to take such measures as will prevent the Post-Office Department, which was designed to foster an amicable intercourse and correspondence between all the members of the Confederacy, from being used as an instrument of an opposite character.” In other words, Jackson wanted federal surveillance and censorship of anti-slavery materials sent through the post office.

Spooner directly attacked this early form of federal postal espionage in his 1844 pamphlet against the post office monopoly:

If the constitution had intended to give to Congress, the exclusive right of establishing mails, it would have prescribed some rules for the government of them, so as to have secured their privacy, safety, cheapness, and the right of the people to send what information they should please through them. But the constitution has done nothing of this kind. On the contrary, the grant is entirely unqualified–and it has made the power of Congress over such mails as they do establish, entirely absolute. They may say what shall go in them, and what shall not- whether they will carry sealed papers, or only open ones-and even whether sealed papers, deposited in their offices, shall be sacred from the espionage of the government. Their power over their own mails is unqualified in every respect. And if the people have no power to establish mails of their own, their whole rights, both of private correspondence, and of transmitting printed intelligence, are at the feet of the government.

If this power, so absolute over its own mails, were also an exclusive one over all mails, it would be incomparably the most tyrannical, if not the only purely tyrannical feature of the government. The other despotic powers, such as those of unlimited taxation, and unlimited military establishments, may be perverted to purposes of oppression. Yet it was necessary that the powers should be entrusted to the government, for the defence of the nation. But an exclusive and unqualified power over the transmission of intelligence, has no such apology. It has no adaptation to facilitate any thing but the operations of tyranny. It has no aspect whatever, that is favourable either to the liberty or the interests of the people. It is a power that is impossible to be exercised at all, without being exerted unjustifiably. The very maintenance of the exclusive principle involves a tyranny, and a destruction of individual rights, that are now, and ever must be, felt through every ramification of society. The power is already exerted to the great obstruction of commercial intelligence, and nearly to the destruction of all social correspondence, except among the wealthy. But that we are accustomed to such fetters, we would not submit to them for a moment.

To what further extent of tyranny and mischief, this power, in the future growth of the country, may be exerted, we cannot foresee. But the only absolute constitutional guaranty, that the people have against all these evils and dangers, is to be found in the principle, that they have the right, at pleasure, to establish mails of their own. And if the people should now surrender this principle, they would thereby prove that their minds are most happily adapted to the degradation of slavery.

It stands to reason the same principles would be true of email – now almost universally monitored and stored by the government under the authority of secret court orders to private providers of this communications medium – today.

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