As the value of telegraph as a communications service was realized, discrimination became more problematic. The opportunity and incentive of communication networks to mess with the service, favoring some and harming others, drove a policy response. The network provider could discriminate in favor some end users over others; the network service provider could use its service to create barriers to market entry for certain end users; and the provider could act anticompetitively with regard to rival networks.
Telegraph service is engaged in interstate commercial intercourse, which is interstate commercie under the power of Congress. [Pensacola Telegraph, 96 US at 9 ("commercial intercourse is an element of commerce which comes within the regulating power of Congress." "Both commerce and the postal service are placed within the power of Congress, because, being national in their operation, they should be under the protecting care of the national government.")]
Telegraph service derives its authority from the state. [Call Publishing Co., 181 U.S. at 100]
Telegraph service perform a public service. [Call Publishing Co., 181 U.S. at 99]
Telegraph service is common carriage, the same as railroad service and postal service [Leloup, 127 U.S. at 645 "we have decided that communication by telegraph is commerce, as well as in the nature of postal service"] [Ratterman, 127 U.S. at 425 ("a company occupies the same relation to commerce, as a carrier of messages, that a railroad company does as a carrier of goods.")] [Texas, 105 U.S. at 464 ("A telegraph company occupies the same relation to commerce as a carrier of messages, that a railroad company does as a carrier of goods... They do their transportation in different ways, and their liabilities are in some respects different, but they are both indispensable to those engaged to any considerable extent in commercial pursuits.")]
was built as an overlay network on top of two other common carriers: the postal roads of the Postal Service and railroads. Unlike railroads, telegraph service was not delivering goods or passengers, but like the Postal Service, it was "interstate transmission of intelligence." Like the Postal Service, and similar to railroad service, telegraph service was offering a delivery service, to the public, where the public selected the thing to be delivered as well as two whom it would be delivered. The thing carried was separate and distinct from the carrier of the thing. As a matter of policy, it would be concluded that this is a good thing, valuable to the country and the economy, and that this service should be provided in a non discriminatory manner.
The application of common carriage to the new service was an evolution. First, the value of the nascent technology had to be proved and adopted. Second, traditional policy had to evolve to apply to the opportunities and concerns of the new technology. The new technology promised both to amplify the benefits as well as intensify the concerns of communications services. If the US Government was not going to act as operator to ensure a communications service that followed the common carrier characteristics of the postal service, than it would act as regulator - a new role for the US Government. A role for which the US Government will take decades to find its footing.
The traditional marketplace of novel policy is the States. The States moved first, developing a theory of common carriage for electronic communications. Then the Federal government followed, extending common carriage obligations from railroads to railroad telegraph service. For telegraph service to expand, it needed conduit; it would be an overbuild network, built on top of Postal Service conduit, Postal Roads. Congress offered a bargain to telegraph service that they could have access to Postal Roads in exchange for agreeing to common carrier principles.
The States :: The Incubation Lab of Policy
Derived From William Jones, The Common Carrier Concept as Applied to Telecom: A Historical Perspective (~1980). See also [Noam, Beyond Liberalization]
Principles of telecom regulation were first expressed in state statutes passed in response to invention of the telegraph. The structure and timing of the early statutes leave little doubt that they were premised on the franchise theory of regulation articulated by Lord Hale.
To function effectively, telegraph companies needed legislative authorization to use public thoroughfares. In many instances the right to traverse private property also was important. Finally, the power to proceed as a corporation was of value to facilitating the aggregation of necessary capital. The early state legislation granted one or more of these privileges and, in recognition of the favored position conferred, exacted obligations in return. Even when the statutes were silent on the responsibilities of telegraph companies, the courts often implied obligations on the basis of the special privileges conferred. State legislation also was influenced by the patent monopoly granted to Morse. The most general pattern was the grant of special privileges (use of public roads, eminent domain, incorporation) joined with the requirement that the company serve all customers, including other telegraph lines, without discrimination -- a mode of regulation appropriate to guard against monopoly abuse.
As an important commercial center, New York exerted a substantial influence on early patters of state legislation. In 1845, New York enacted that
The proprietors of the pentent rights of Morse's electromangetic telegraph may be and hereby are authorized to construct lines of said telegraph from point to point and across any of the waters within the limits of this state, by the erection of posts, piers or butments for sustaining the wires of the same: Provided that the same shall not in any instance be so constructed as to endanger or injuriously interrupt the navigation of such waters; and provided also, that the private right of individuals shall be in no wise impaired by the provision of this act.
Three years later, in 1848, New York adopted the first comprehensive telegraph legislation: "An act to provide for the incorporation and regulation of telegraph companies." The first three sections of the act were concerned with the prerequisites for incorporation, requiring among other things a description of the "general routs of the line of telegraph, designating the points to be connected." Section 4 conferred the normal legal powers on the corporation, including the power to "make such prudential rules, regulations and by-laws, as may be necessary in the transaction of their business, not inconsistent with the laws of this state or of the United States."
Section 5 permitted construction of the telegraph line "along and upon any of the public roads and highways, or across any of the waters within the limits of this state, by the erection of the necessary fixtures . . . provided the same shall not be so constructed as to incommode the public use of said roads or highways, or injuriously interrupt the navigation of said waters..." Section 6 prescribed procedures by which landowners would be compensated for the use of their lands by the telegraph company, implicitly conferring the equivalent of the power of eminent domain.
The regulatory provisions of the statute were included in sections 11 and 12. They required service to all customers, including other telegraph companies, on a nondiscrimiatory basis:
s 11. It shall be the duty of the owner or the association owning any telegraph line, doing business within this state, to receive dispatches from and for other telegraph lines and associations, and from and for any individual, and on payment of their usual charges for individuals for transmitting dispatches, as established by the rules and regulations of such telegraph line, to transmit the same with impartiality and good faith, under penalty of one hundred dollars for every neglect or refusal to do so... 
s 12. It shall likewise be the duty of every such owner or association, to transmit all dispatches in the order in which they are received, under the like penalty of one hundred dollars . . . provided, however, that arrangements may be made . . . for the transmission of [newspaper dispatches] out of [their] regular order.
An 1850 statute added the provision:
Any person connected with a telegraph company... who shall willfully divulge the contents, or the nature of the contents, of any private communication entrusted to him for transmission or delivery, or who shall willfully refuse or neglect to transmit or deliver the same, [shall be adjudged guilty of a misdemeanor.] 
In 1851, telegraph companies were authorized to extend their lines, to construct branch lines, and to united with other incorporated telegraph companies. 
See also Press Release, Public Service Committion Invites Comments on Proposed Rules Codifying Common Carrier Obligations of Telephone Companies, C89C099 (New York October 11 1989) ("The states' earliest approaches to public utility regulation involved legislative decision making with implementation by specific statutory enactments. In 1849, New York state required telegraph companies to provide non discriminatory service to competing telegraph companies as well as to individuals. State regulatory boards soon replaced legislative regulation notably in Illinois and Massachusetts. The first independent, broadly empowered regulatory Commissions were set up in 1907 in New York and Wisconsin. And as telephone use increased, more states began to regulate it")
In 1847, Virginia provided that any person, satisfying the board of public works of its right to use the invention, could construct telegraph lines along public roads with the consent of local authorities. A penalty was imposed on any telegraph agent "who may, from corrupt or improper motives, withhold or delay the transmission of messages or intelligence, for which the customary charges have been paid or tendered."  An 1849 codification of prior legislation referred to the power of telegraph companies to "make reasonable charges on [telegraph] messages."  A more comprehensive statute, similar to that of New York, was enacted in 1852.  The reference to reasonable charges was carried forward in subsequent codifications.
 Act of May 13, 1845 NY Laws, c. 243, p. 264
 Act of April 12, 1848, NY Laws, c. 265, p. 392.
 Section 11 was amended in 1955 to add the following: [undicipherable]
 Act of April 10, 1950, NY Laws, c. 340, p. 739.
 Act of April 22, 1851, NY Laws c. 98, p. 178. Other amendments were made by Act of June 29, 1853, NY Laws, c. 471, p. 931 (various aspects, including eminent domain); Act of April 22, 1862, NY Laws c. 425, p. 761 (broadening authority to extend lines and acquire other companies); Act of May 9, 1867, NY Laws, c. 871, p. 2186 (concerned with improper access to telegrams); Act of May 2, 1970 (sic?), NY Laws, c. 568, p. 1327 (concerned with transfers of telegraph franchises and properties); Act of May 14, 1875, NY Laws, c. 319 (concerned with changes in routes); Act of May 27, 1879, NY Laws, c. 377, p. 444 (reiterating duty to transmit in terms similar to sec. 11 of the 1848 statute); Act of May 28, 1879, NY Laws, c. 397, p. 460 (concerned with underground construction of telegraph lines).
 Act of Mar. 20, 1847, Va. Laws, 1846, c. 92, p. 79 ss 3, 4. The act authorized telegraph operations by specific companies, specifying "reasonable charges" on messages transmitted. ss 1, 2. Other acts of specific incorporation include Act of Mar. 6, 1847, Va. Laws, 1846, c. 99, p. 85 (no rate standard); Act of Mar. 17, 1849, Va. Laws, 1849, c. 197, p. 138 (specified rate standard); Act of Mar. 12, 1849, Va. Laws, 1848-49, c. 200, p. 142 (referenced to reasonable rates). See Also the Act of Mar. 31, 1848, Va. Laws, 1847-48, c. 123, p. 1677, requiring telegraph companies to make annual reports to the board of public works, giving financial data and "regulations adopted to ensure the faithful discharge of the duties undertaken..."
 Va. code, ch. 65, sec. 1 (1849).
State of Indiana, §§ 4176, 4178, Rev.Stat. Ind. 1881: [Pendleton, 122 U.S. at 348]
§ 4176, Rev.Stat.Ind. 1881: "Every electric telegraph company, with a line of wires wholly or partly in this state and engaged in telegraphing for the public shall, during the usual office hours, receive dispatches, whether from other telegraphing lines or from individuals, and on payment or tender of the usual charge, according to the regulations of such company, shall transmit the same with impartiality and good faith, and in the order of time in which they are received, under penalty, in case of failure to transmit or if postponed out of such order, of one hundred dollars, to be recovered by the person whose dispatch is neglected or postponed, provided however that arrangements may be made with the publishers of newspapers for the transmission of intelligence of general and public interest out of its order, and that communications for and from officers of justice shall take precedence of all others."
§ 4178, Rev.Stat.Ind. 1881: "Such companies shall deliver all dispatches, by messenger, to the persons to whom the same are addressed or to their agents on the payment of any charges due for the same, provided such persons or agents reside within one mile of the telegraphic station or within the city or town in which such station is."
Iowa"Any person employed in transmitting messages by telegraph must do so without unreasonable delay, and anyone who willfully fails thus to transmit them, or who intentionally transmits a message erroneously, or makes known the contents of any message sent or received to any person except him to whom it is addressed or to his agent or attorney, is guilty of a misdemeanor. The proprietor of a telegraph is liable for all mistakes in transmitting messages made by any person in his employment and for all damages resulting from a failure to perform any other duties required by law." - [Pendleton, 122 U.S. at 350]
1855 Pa. Laws 531 (requiring telegraph operators “to preserve the originals of all [telegraph] messages sent from such office . . . for at least three years . . . .”)
- Court consternated because telegraph does not carry a good, failing to recognize the role of carrying information. Concluding that while did not carry good like a CC, still it would be held to the same standard. Tyler, Ullman & Co. v. Western Union Tel. Co., 60 Ill. 421, 431 (1871). See also Leonard v. New York, Albany & Buffalo Electro Magnetic Tel. Co., 41 N.Y. 544, 569-70 (1870) (holding that telegraph companies are not common carriers, but are subject to similar law).
- Parks v. Telegraph Co., 13 Cal. 423, 424-25 (1859) (The rules of law which govern the liability of telegraph companies are not new. They are old rules applied to new circumstances. Such companies hold themselves out to the public as engaged in a particular branch of business, in which the interests of the public are deeply concerned. They propose to do a certain service for a given price. There is no difference in the general nature of the legal obligation of the contract between carrying a message along a wire and carrying goods or packages along a route. The physical agency may be different, but the essential nature of the contract is the same.)
States Rights / Federal Supremacy
See Post Roads Act litigation where the Supreme Court considered the jurisdictional boundary between federal interstate and state intrastate authority, and the pre-emption of state authority by the federal government.
Transcontinental Telegraph Act contained a preliminary non discrimination provision that the telegraph service should be open to "all citizens of the United States."
Railroads were traditional common carriers. Railroads also had long rights-of-way upon which they built their transportation networks. Railroads were perfect siblings for telegraph service and the first telegraph line in England was built along a telegraph line. In the United States, telegraph service expanded between the cities taking advantage of agreements with railroad companies.
Both railroads and telegraph offered the service of moving stuff of the customer's choice from origin to destination of the customer's choice. To do this, both required access to conduit and right of way over which to build their networks. Gaining access to rights of way required at times engagement of the government who enacted legislation or engaged in eminent domain. Both networks promised tremendous public welfare, with first communications network, the Postal Service, of such high value to the fledgling democracy that it was written into the Constitution. The economy of the new nation, the Nation's war effort, and the Nation's Westward expansion was being achieved on top of both railroad and telegraph service.
As telegraph service evolved from nascent novelty to realized value, it was natural to extend traditional commercial common carriage policy from railroad to telegraph service.
Pacific Railroad Act of 1864 July 2 Act of Congress requires railroads "to operate and use said roads and telegraph for all purposes of communications, travel, and transportation, so far as the public and Government are concerned, as one continuous line, and in such operation and use to afford and secure to each equal advantage and facilities as to rates, times, and transportation, without any discrimination of any kind in favor of the road or business of any or either of said companies, or adverse to the road or business of any or either of the others, and it shall not be lawful for the proprietors of any line of telegraph authorized by this act, or the act amended by this act, to refuse or fail to convey for all persons requiring the transmission of news and messages of like character." [NYT Apr 5 1880]
- 1837: Congress researches building a government (optical) telegraph network
- 1844-45: USG funds and operates (USPS) first electronic telegraph network - constructed by Morse
- 1857+: USG contracts for construction of undersea telegraph cables. Landing rights are under the jurisdiction of the State Department until 1934 when they are transferred to the FCC
- 1860-62: Transcontinental Telegraph Act and Pacific Railroad Act: USG contracts with telegraph providers for construction and operation of nationwide telegraph service.
- 1866: Post Roads Act places telegraph under jurisdiction of Post Office. Post Office receives certification of telegraph provider agreement with Post Roads Act, sets rates for government use of commercial telegraph service, and has oversight of compliance with Post Roads Act. Postal Law 1886 Sec. 141 Annual Fixation of Rates for Official Telegrams, Post Roads Act, and Postal Law of 1886 - telegraph company acceptance of terms was filed with Post Office. Postal Law 1886 Sec. 143. Post Office retains this jurisdiction until 1934.
- 1877: Pensacola Tel. Co. v. Western Union Tel. Co., 96 U.S. 1 (1877) ("Post offices and post roads are established to facilitate the transmission of intelligence. Both commerce and the postal service are placed within the power of Congress, because, being national in their operation, they should be under the protecting care of the national government." Telegraph falls under the Commerce Clause and the Constitutional Authority to establish post offices and post roads)
- 1908: USA joins the International Telegraph Union, signs onto the International Telegraph Convention. This falls under State Department jurisdiction.
- 1910: Mann Elkins Act places telegraph under jurisdiction of the Interstate Commercie Commission as a common carrier
- 1915: Supreme Court finds telegraph providers are federal agencies when transmitting federal government messages [Williams, 226 U.S. at __]
- 1917 WWI: USG nationalized, USPS oversight, telegraph and telephone
- 1934: Communications Act places telegraph under jurisdiction of the Federal Communications Commission as a common carrier
Should the new communications service be classified the same as the legacy communications service? Is a telegraph the same as a "post" and does telegraph fall under the USG's Constitutional authority over post offices and post roads?
In Europe, telegraph service was offered by national postal services.
Telegraph presented a number of questions of first impression for the Supreme Court. The Supreme Court is struggling with a dichotomy: either telegraph service is - is not - the federal government (either federal telegraphs carried by telegraph providers is - or is not - within the jurisdiction of state authority). And you can hear the Supreme Court struggle with the question, the answer, and the theory. At one point the Court concludes that federal messages over telegraph service is an agent of the federal government, an agency of the federal government, or is the business of the federal government - similar concepts but not quite the same. The Supreme Court is struggling with these new creatures - large national corporations conducting interstate commerce operating pursuant to federal policies to build the new nation. While telegraph service is not the federal government, federal policy does not want telegraph service left to the slings and arrows of state authority. See also Enhanced Service versus Basic Service Dichotomy
The Supreme Court slowly pounded out the question. Telegraph service is interstate commerce, falling under federal Constitutional authority under the Commerce Clause. Telegraph service is the interstate transmission of intelligence, and therefore falls under federal constitutional authority over post offices and post roads. When Congress enacted the Post Roads Act, it extended its Constitutional authority over post offices and post roads to telegraph. Telegraphs were equated with posts.
Western Union incentive was to be free of State taxes and State licensing authorities. Therefore Western Union argued that telegraph service was a federal agency [Williams, 226 U.S. at 405-06 (pursuant to the Post Roads Act, "Western Union Telegraph Company was created an instrumentality of the Federal Government")] [Western Union Telegraph Co. v. Gottlieb, 190 U.S. at 416 (WU arguing "The Western Union Telegraph Company is an agent of the government")]; that telegraph service was postal service [Williams, 226 U.S. at 408-09 ("The telegraph company in the transmission of government messages is in the service of the Government as is a *409 rural mail carrier")]; and therefore telegraph service was outside the jurisdiction of state authority. Western Union did not want to be subject to state's license or taxation authority.
The Supreme Court did not go as far as Western Union. Telegraph service fell under federal authority over post offices and post roads. Telegraph service, to the extent it was the transmission of federal telegraphs, was a federal agency. [Williams, 226 U.S. at 419 ("business a part of which is that of a governmental agency constituted under a law of the United States and engaged in an essential part of the public business — communication between the officers and departments of the Federal Government")] [Telegraph Co. v. Texas, 105 U.S. 460 ("The Western Union Telegraph Company having accepted the restrictions and obligations of this provision by Congress, occupies in Texas the position of an instrument of foreign and interstate commerce, and of a government agent for the transmission of messages on public business.")] As federal government business, it was out of the reach of State authority. [Williams, 226 U.S. at 419 (state tax of telegraph service, which included taxation of federal telegraphs transmitted by telegraph service, unconstitutional)] [Telegraph Co. v. Texas, 105 U.S. 460 ("As to the government messages, it is a tax by the State on the means employed by the government of the United States to execute its constitutional powers, and therefore, void")] However, non-federal telegraph service was within the reach of State Jurisdiction for purposes of taxes and licensing.
There is another question not presented before the Supreme Court. It appears that telegraph service acted... significantly... as a government contractor. And in exchange for those contracts, government messages were given priority and were given a special rate (or were free). The first telegraph service was pursuant to government contract. The transcontinental telegraphs and the undersea telegraphs were pursuant to government contract. During the Civil War, both the Union and the Confederacy seized control of telegraph service, and telegraph service was operated by private companies, under government control, and pursuant to government contracts. The Union would give Western Union thousands of mile of telegraph line after the war. Telegraph would again be nationalized during World War I. Yes, telegraph service was offered by private companies. However those private companies were highly funded by federal - and state - governments.
In time, telegraph was classified as "common carriage" and telegraph fell under the jurisdiction of the Federal Communications Commission. Telegraph service found itself disrupted by a new comer, telephone service, and by a reinvented legacy service, airmail. Telegraph as pseudo-government contracted service gave way to telephone as government-sanctioned monopoly
Nationalization / Government Control[EHA ("On the federal level, bills were introduced in almost every session of Congress calling for either regulation of or government entry into the industry. Western Union’s lobby was able to block almost any legislation. The few regulations that were passed either helped Western Union maintain its control over the market or were never enforced.")]
- Manns Elkins Act of 1910
- Esteve Brother, 256 U.S. at 572 ("The lawful rate having been established, the company was by the provisions of S 3 of the Act to Regulate Commerce prohibited from granting to anyone an undue preference or advantage over the public generally.")
- Pacific Roads Act of 1888
- Pacific Railroad Act of 1964, Sec. 15 (cannot discriminate, must provide service to all, cannot refuse to provide service to any)
- Pacific Telegraph Act, Sec. 1 (telegraph service "shall be open to the use of all citizens of the United States"")
- ICA Sec. 2
Delivered in Order
- Pacific Telegraph Act of 1860, Sec. 3 (messages "shall be impartially transmitted in the order of their reception")
Duty of Care :: Tiers of Service :: Liability
The Southern Telegraph Companies (copy of 1964 telegram):"The public are notified that in order to guard against mistakes in the transmission of messages, every message of importance ought to be repeated by being sent back from the station at which it is to be received to the station from which it is originally sent. Half the usual price for transmission will be charged for repeating the message, and while these Companies will as heretofore use every precaution to insure correctness, they will not be responsible for mistakes or delays in the transmission or delivery of repeated messages beyond five hundred times the amount paid for sending the message, nor will they be responsible for mistakes or delays in the transmission of unrepeated messages, from whatever cause they may arise, nor the delays arising from interruptions in the working of their Telegraphs, nor for any mistakes or omissions of any other Company over whose lines a message is to be sent to reach the place of destination. All messages will hereafter be received by these Companies for transmission subject to the above conditions."
ICA Sec. 1
Esteve Brother, 256 U.S. at 570:
570: "Western Union had maintained these two classes of rates for general cable and telegraph service. The usual and basic rate was for service practically at the sender's risk, liability being limited to the amount of the toll collected. Another special rate entitled the sender to have the message repeated back to the point of origin and rendered the company liable in case of mistake or nondelivery up to fifty times the amount of the extra charge. The extra charge for this additional service was for telegrams one-half and for cables one-quarter of the basic rate."
573: "The limitation of liability attached to the unrepeated cable rate is binding upon all who send messages to or from foreign countries until it is set aside as unreasonable by the Commission."
Pimrose, 154 U. S. 1., where telegraph company offers different rates, and offers a higher rate for repeated service, and a lower rate for unrepeated service, telegraph company can with the lower rate limit liability to the price of the telegram. [Esteve Brother, 256 U.S. at 570 (summarizing Pimrose, stating "the company's common law liability was held to be in the nature of contract, and this liability, unlike that of a common carrier, was not an insurer's. It was merely for the damage flowing from failure to use due care in transmission.")]
Telegrams could be sent repeated or unrepeated (repeating was a form of error correction). Liability for transmission of messages could be based on different rates paid or services acquired. [Harris 1914 n. 3]
Duty of Care, Liability for non delivery or mis delivery of telegrams W. U. Tel. Co. v. Sklar (C. C. A.), 126 Fed. 295; Rowan v. W. U. Tel. Co., 149 Fed. 550; W. U. Tel. Co. v. Burris (C. C. A.) 179 Fed. 92; Kyle v. C. R. I. & P. R. R. Co. (C. C. A.), 182 Fed. 613.
- Pacific Telegraph Act of 1860 Sec. 1 (government priority)
- Pacific Railroad Act
- Post Roads Act
- International Telegraph Union
- ICA Sec. 1; ITC Part III, Art. 32
- Tarriffs filed by telegraph and telephone cos. [FCC First Report 1935 at 70]
- Post Office, Rule 11, 1845
Rates set or constrained by government regulator
- Pacific Telegraph Act of 1860 Sec. 1 ("That such charges shall not exceed three dollars for a single dispatch of ten words"")
DisclosureGenerally telegraph companies were required to disclose rates, terms, and terms of their service. See the Interestate Commerce Act.
Access to Right of Ways
- Pacific Telegraph Act of 1860
- Pacific Railroad Act
- Postal Roads Act
- Postal Law 1886 Sec. 142 (articulating the Postal Roads terms)
Authority to Operate
- [FCC First Report 1935 (44: WU asking permission to install lines; firms applying for certificates of convenience and necessity)]
- Post Office, Rule 11, 1845 (exchange of traffic between telegraph and post office)
- International Telegraph Convention, Art. 1 :: wire gauge for internation
- During the period of the Treaty of the Six Nations - there was not lines that went direct from source to destination - any time a message crossed a territorial boundary, there would be a station where the message would be received by an operator at the end of one network, and then a paper version handed to an operator of the other network, who would then forward the message on through the network (a.k.a. store and forward)
- Pacific Railroad Act of 1862: Sec. 7 (interconnection with eastern connections)
- Pacific Railroad Act of 1864, Sec. 15 (telegraph companies shall operate as far as consumers are concerned as "one continuous line")
- Western Union Annual Report 1869 at 9 Reporting on the efficiency of the consolidated telegraph service, with fully interconnected service instead of repetition of messages as it is transmitted between lines or different companies. "The consolidations which have resulted in the Western Union system mark a new and important era in the progress of the telegraph in this country. By them the means of communica tion at all points have been greatly increased, while between all .the large cities and many of the less important a system of 'wrect circuits has been established, which affords facilities for rapid and reliable communication at all times. Instead of several repetitions of messages between the great com mercial centres of the country, as formerly, transmission is now in most cases direct and instantaneous ; and the operation of our system over the vast territory covered by our lines is fast assum ing the certainty and uniformity of mechanism. Not only, how ever, have the public gained in time and in greatly increased facilities by these consolidations, but they have received also the benefit of large reductions in the rates for both public and private despatches."
- Pacific Roads Act of 1888
- 1887: "Congress gave the Interstate Commerce Commission authority to require telegraph companies to interconnect their lines for more extended public service." [FCC Report 1959 at 11]
- 1888 amendment to the Post Roads Act, published in a 1906 volume: "§ 2 Any telegraph company may connect with existing lines - That whenever any telegraph company which shall have accepted the provisions of title sixty-five of the Revised Statutes shall extend its line to any station or office of a telegraph line belonging to any one of said railroad or telegraph companies, referred to in the first section of this act, said telegraph company so extending its lines shall have the right and said railroad or telegraph company [Equal Facilities Compulsory] shall allow the line of said telegraph company so extending its line to connect with the telegraph line of said railroad or telegraph company to which it is extended at the place where their lines may meet, for the prompt and convenient interchange of telegraph business between said companies; and such railroad and telegraph companies, referred to in the first section of this act, shall so operate their respective telegraph lines as to afford equal facilities to all, without discrimination in favor of or against any person, company, or corporation whatever, and shall receive, deliver, and exchange business with connecting telegraph lines on equal terms, and affording equal facilities, and without discrimination for or against any one of such connecting lines; and such exchange of business shall be on terms just and equitable."
- 1843: Morse original Telegraph Line
- Pacific Telegraph Act of 1860 : For ten years, $40,000 per year, ROW over public lands, and public land for telegraph stations; plus $6000 from California
- Undersea Cable Funding
- 1861: Army of the North constructs thousands of miles of telegraph line during the Civil War. At end of war, lines are transferred to Western Union
- 1873: Federal Appropriations Act: Appropriating funding for the construction of telegraph lines between the Capitol and various Departments in Washington. [Postal Law 1886 Sec. 137]
- Pacific Telegraph Act of 1860 : For ten years, $40,000 per year, ROW over public lands, and public land for telegraph stations; plus $6000 from California
- Pacific Railroad Act of 1862: Land Grants
- Postal Roads Act :: free access to federal land, land grants for station construction, and grants of construction materials
- Postal Law 1886 Sec. 142: Subsidy of free access to federal land for construction of telegraph lines as well as access to stone, timber, and other materials for the networks construction, as well as land for stations
- Post Office, Rule 11, 1845
As a message traveled through the network, every operator and transcriber in the route would know the contents of the message. The contents of the message would also naturally be revealed to the third-party recipient end user of the message. During the Civil War, intercepted telegrams were regularly provided to The North's leadership and to Pres. Lincoln. During WWI, the British intercepted the Zimmerman telegram, which proposed an alliegance between Germany and Mexico should the United States enter The War (when Secretary of State Henry L Stimson was presented with intercepted Japanese telegrams, he terminated the program infamously stating "Gentleman do not read each other's mail."). In 1919, the U.S. established the Black Chamber which decrypted communications. After WWII, the US implemented Operation Shamrock, delivering all telegrams to the NSA. See also Dreyfus Affair.
Some telegraph companies required operators to sign confidentiality agreements.
A popular method of end users to protect the privacy or confidentiality of a message was to encrypt the contents using a cipher. [McMullan] [See Civil War] The ITU was formed in 1865 out of European initiatives to harmonize rules about the use of code in telegraph messages. [Standage 111] Code books emerged: The Secret Corresponding Vocabulary Adapted for Use to Morse's Electro-magnetic Telegraph and Also in Conducting Written Correspondence, Etc 1845; The Telegraph Dictionary, and Seamen's Signal Book: Adapted to Signals by Flags Or Other Semaphores; and Arranged for Secret Correspondence, Through Morse's Electro-magnetic Telegraph: for the Use of Commanders of Vessels, Merchants 1845
Law Enforcement Agents acquired copies of telegraphs using subpoena duces tecum. [Oliver, Privacy Advocates (''A subpoena duces tecum for telegrams provided the imprimatur of judicial authorization without any meaningful oversight of a court.")]. States had laws against disclosing the contents of telegrams, but these laws did not see much enforcement and there were not used to block government access to telegrams.
1903: December 17: Wright Brothers successfully demonstrate flight at Kitty Hawk. Telegraph home their success. Message is intercepted in Norfolk and published in the Norfolk Virginia-Pilot in a "ludicriously inaccurate account" with the headline "FLYING MACHINE SOARS 3 MILES IN TEETH OF HIGH WIND OVER HILLS AND WAVES AT KITTY HAWK ON CAROLINA COAST." [David McCullough, The Wright Brothers, Chapter 6. Section 1]
- 47 USC 605 1934: “No person not being authorized by the sender shall intercept any communication and divulge . . . the contents. ” (had been part of the Radio Act of 1927)
- N.Y. PENAL LAW § 641 (McKinney 1881).
- [Woolf "Then, of course, eavesdroppers can literally tap the telegraph wire anywhere along its length — the first wiretapping — to listen to a message. Some US states introduced legislation against this kind of thing as early as the 1860s, and imposed heavy penalties on personnel disclosing content."]
- Tom Standage, The Victorian Internet 121 (Walker and Company 2007) ("Delaying the mail was illegal, but delaying a telegram was not. The law was subsequently extended to make it a crime to alter, delay or disclose the contents of a telegram." ~1886 London)
- Boyd v. United States, 116 U.S. 616, 633 (1886) (no 4th Amendment privacy in contents of telegraph messages)
- United States v. Babcock, 24 F. Cas. 908 (E.D. Mo. 1876) (Western Union challenged a subpoena for disclosure of the contents of telegrams in case that accused Pres. Grant's personal secretary of tipping off distilleries to tax raids)
- Ex Parte Brown, 72 Mo. 83, 90 (Mo. 1880) (Western Union resisting a subpoena for all telegraphs between four individuals for a period for 15 months, the Missouri Supreme Court agreed: "[S]hall at least give a reasonably accurate description of the paper wanted, either by its date, title, substance, or the subject it relates to . . . . To permit an indiscriminate search among the papers in one’s possession for no particular paper, but some paper, which may throw some light on some issue involved in the trial of some cause pending, would lead to consequences that can be contemplated only with horror, and such a process is not to be tolerated among a free people.")
- Anuj C. Desai, Wiretapping Before the Wires: The Post Office and the Birth of Communications Privacy, 60 STAN. L. REV. 553, 577-78, 582 (2007) (Brown established the precedent that subpoenas have specificity for the telegraphs sought)
- Ex Parte Gould, 132 S.W. 364, 374-80 (Tex. Crim. App. 1910)
- 44 CONG. REC. H452 (daily ed. Jan. 5, 1877) (subpoenaing telegrams related to the contested 1876 election)
- 44 CONG. REC. H454 (daily ed. Jan. 5, 1877) (Western Union claiming that subpoena for all telegrams of republicans related to the contested 1876 election constituted an impermissible general warrant).
- 1843: Post Office Rule 11 (first promulgated regulation of electronic communications - includes privacy provision)
- 1838: Woodbury Report; Morse Submission - arguing advantages of electronic telegraph: Fifth reason is "Communications are secret to all but the persons for whom they are intended"
- Wesley MacNeil Oliver, America’s First Wiretapping Controversy in Context and as Context, 34 HAMLINE L. REV. 205, 216 (2011) 
- DAVID J. SEIP, THE RIGHT TO PRIVACY IN AMERICAN HISTORY 30 (1978).
International Telegraph Convention, Art. 21
International Telegraph Convention, Art. 23
- Post Roads Act is permissive; telegraph providers remain subject to state taxation
- [Williams, 226 U.S. at 419 (state tax of telegraph service, which included taxation of federal telegraphs transmitted by telegraph service, unconstitutional)]
- Postal Telegraph Cable Co. v. Charleston, 153 U.S. 692. "It is obvious that the advantage or privileges that are conferred upon the company by the [Post Roads Act] are in the line of authority to construct and maintain its lines as a means or instrument of interstate commerce, and are not necessarily inconsistent with a right on the part of the part of the State in which business is done and property acquired to tax the same..."
- Western Union Telegraph Co. v. Gottlieb, 190 U.S. 412 (1903) ("that the statute (Post Roads Act) was merely permissive and conferred no exemption from the ordinary burdens of taxation... the corporation could be taxed in exchange for the protection it received from the State `upon its real or personal property as any other person would be.'")
- Western Union Telegraph Co. v. Massachusetts, 125 U.S. 530, Taxation on telegraph services property within state sustained.
- Transcontinental Telegraph Line, Sec. 1