Privacy is fundamental to democracy, and necessary for meaningful civic discourse. The chilling effect of surveillance, then, is in and of itself a powerful tool of suppression—self-censorship stifles dissent before it even begins to manifest publicly.[1] During the Gilded Age and Progressive Era, this much was known to the Supreme Court, the adopters of the dictograph, and Roosevelt's Bureau of Investigation. Despite broadening Fourth Amendment protections, the Gilded Age and Progressive Era diminished privacy, both institutional and personal:[2] the dictograph allowed for more effective surveillance of unions and individuals, and Roosevelt's Bureau of Investigation led to the rise of a surveillance state in which dissidence was surveilled—and therefore suppressed. Indeed, the Gilded Age and Progressive Era were collectively a period of great expansion—of Fourth Amendment protections, too, but also of labor unrest,[3] business interests,[4] recording technology, and, consequently, the American surveillance state.

Broadening Fourth Amendment Protections

The Gilded Age and Progressive Era saw a great strengthening of the Fourth Amendment. Prior to this expansion, Fourth Amendment doctrine was largely underdeveloped: whether the Fourth Amendment applied to electronic communications and mailed items, for example, had not yet been determined by a court of law.[5] When the Supreme Court finally addressed these legal ambiguities in a series of landmark decisions, it consistently decided in favor of broadening Fourth Amendment protections.[6] The first such case was Ex parte Jackson (1878), which ruled that mailed items were subject to Fourth Amendment protections.[7] The court considered sealed mailed items to be subject to the same protections as the papers in one's home, writing that "letters and sealed packages of this kind in the mail are as fully guarded from examination and inspection, except as to their outward form and weight, as if they were retained by the parties forwarding them in their own domiciles."[8] Eight years later in Boyd v. United States (1886), the Supreme Court revised its interpretation of the Fourth Amendment to apply not only to criminal proceedings but also to civil proceedings as well,[9] though it was careful to exclude subpoenas of businesses from its decision.[10] Another landmark privacy decision arose in 1914 with Weeks v. United States (1914), in which the Supreme Court ruled that evidence seized illegally (i.e. without a search warrant) was inadmissible in a court of law. If such evidence was admitted, the court found, the Fourth Amendment would be of effectively "no value."[11] Finally, in Olmstead v. United States (1928), the Supreme Court ruled that evidence obtained via telephone wiretaps—a technology new to the era—was subject to Fourth Amendment protections[12] and therefore, following Weeks, inadmissible as evidence in court.[13] While the cases of the Gilded Age and Progressive Era led to a great strengthening of Fourth Amendment protections, the same cannot be said of privacy at large.

New Technologies Enabling Surveillance

Despite these broadening Fourth Amendment protections, the Gilded Age and Progressive Era also witnessed the invention of the dictograph, a discreet audio recording device that left Americans' private communications vulnerable to intrusion.[14] Invented in 1905 by Kelley Turner, the dictograph could record even the most distant sound through its sensitive internal microphone or by connection to a telephone wire.[15] Turner initially hoped that his invention would be used by journalists to gather news reports,[16] but the device quickly became a popular tool of surveillance.[17] The high sensitivity of the dictograph microphone made it an ideal tool for eavesdropping,[18] and the device quickly gained popularity among law enforcement officials. The dictograph first appeared in court in 1910, when its recordings were used to prosecute three union members accused of an October 1, 1910 bombing of the Los Angeles Times.[19] Union leader Samuel Gompers convinced the prolific ACLU defense lawyer Clarence Darrow to accept the case, expecting that the men would be acquitted under Darrow's representation.[20] Unbeknownst to Gompers, who assumed privacy, the prison cell of the accused had been outfitted with a dictograph that relayed all sounds to prosecutors listening not far away.[21] According to a New York Times report, Darrow eventually discovered the device, and "became convinced that the walls of the prison had ears."[22] To Darrow, the recordings were insurmountable evidence, and wrote later in his autobiography of "the impossibility of winning, or even trying the case. [...] We had no evidence of importance that we could offer."[23] No search warrant had been issued for the recording of the accused, however the Weeks ruling (1914) had not yet been made[24] and the recordings were subsequently admitted as evidence in the court.[25][26]

The surveillance capabilities of the dictograph were used not only by law enforcement officials, but also by anti-Union business leaders.[27] The Railway Audit and Inspection Company provides a case in point: the company secretly installed dictographs among its workmen to record their private conversations and uncover labor movement sympathizers.[28] The dictograph was used again in anti-union efforts in 1914 when operatives for the Fulton Bag and Cotton Mill travelled to Atlanta to install a dictograph in the headquarters of several strike leaders.[29] Listening from a hideout across the street, the operatives monitored four months of the strike leaders' communications and relayed the information to company leaders.[30] Again, the dictograph proved a powerful tool of surveillance. Though not the original intention of the inventor,[31] the dictograph reshaped the public conception of privacy: one's "acoustic space" could no longer be considered private, and, demonstrating the prevalence of this surveillance within the public conscious, "to dictograph" became a common verb.[32] Despite growing Fourth Amendment protections, the dictograph proved a more direct threat to privacy.

The Rise of the Surveillance State

While the dictograph enabled the violation of privacy, the Bureau of Investigation institutionalized it. Founded by Theodore Roosevelt in 1908, the Bureau of Investigation ("BOI", which would later be renamed to the FBI) initially focused its investigative efforts on interstate commerce, government corruption, anti-trust suits, and 'moral' crimes.[33] Gradually, however, the Bureau shifted its efforts from combating government corruption to ensuring government protection, and from pursuing antitrust litigation to prosecuting union leaders and members.[34] An outbreak of political violence in 1919 led to the creation of the Herbert Hoover's Radical Division, which existed solely to monitor the activities of political dissidents.[35] Although later renamed to the General Intelligence Division (GID) to seem more neutral*,* its charter remained the same: surveil—and by consequence, suppress—dissent.[36] To this end, it was very effective: Hoover's GID spied on liberals, anarchists, communists, members of the working class, union leaders, and black Americans.[37] By 1923, at least 450,000 people were included in BOI spy files.[38] According to Richard Polenberg, "The project dearest to Hoover's heart was the development of a master file of left-wing organizations and individuals, [...] by 1919 more than half the Bureau of Investigation's field force was covering radical activities."[39] Richard Powers promotes a similar idea, arguing that the Bureau's objective was to exert "social control in the form of political surveillance."[40] The Bureau of Investigation, then, formed the institutional backbone of the newfound American surveillance machine.

Despite growing Fourth Amendment protections, the invention of the dictograph and the formation of the Bureau of Investigation (and its Hoover-led Radical Division) ultimately led to a net decrease of privacy during the Gilded Age and Progressive Era. While Americans could rest assured that their papers would be protected in a court of law, violations of privacy increasingly took place outside the courtroom as the dictograph entered private use and the Bureau of Investigation operated extrajudicially. Driven by both a push for government control and corporate supremacy, the Gilded Age and Progressive Era mark the beginning of a still-unfinished period of United States history: that of the American surveillance state.


Diffee, Christopher. "Sex and the City: The White Slavery Scare and
    Social Governance in the Progressive Era." *American Quarterly* 57,
    no. 2 (June 2005): 411-37.

Fraenkel, Osmond. "Concerning Searches and Seizures." *Harvard Law
    Review* 34, no. 4 (February 1921): 361-87.

Greenberg, Ivan. *Surveillance in America: critical analysis of the
    FBI, 1920 to the present*. Lanham, MD: Lexington Books, 2012.
    Digital file.

Kemp, Kathryn W. "'The Dictograph Hears All': An Example of
    Surveillance Technology in the Progressive Era." *The Journal of the
    Gilded Age and Progressive Era* 6, no. 4 (July 2010): 409-30.

Murchison, Kenneth. "Prohibition and the Fourth Amendment: A New
    Look at Some Old Cases." *The Journal of Criminal Law and
    Criminology* 73, no. 2 (Summer 1982): 471-532. doi:10.2307/1143105.

Nichols, Christopher, and Nancy Unger, eds. *A Companion to the
    Gilded Age and Progressive Era*. Malden, MA: John Wiley & Sons,
    2017. Digital file.

Shaw, Jonathan. "The Watchers." *Harvard Magazine*, January/February
    2017. Accessed February 7, 2018.

Yablon, Nick. "Encapsulating the Present: Material Decay, Labor
    Unrest, and the Prehistory of the Time Capsule, 1876--1914."
    *Winterthur Portfolio* 45, no. 1 (Spring 2011): 1-28.

This piece was originally written for a history course at Phillips Academy Andover.

Cover image: File:Release flier for EXPOSED BY THE DICTOGRAPH, 1912.jpg, Wikimedia Commons, from the Margaret Herrick Library, Academy of Motion Picture Arts and Sciences.

  1. Jonathan Shaw, "The Watchers," Harvard Magazine,
    January/February 2017, accessed February 7, 2018, ↩︎

  2. Christopher Nichols and Nancy Unger, eds., A Companion to the
    Gilded Age and Progressive Era
    (Malden, MA: John Wiley & Sons,
    2017), 372, digital file. ↩︎

  3. Nick Yablon, "Encapsulating the Present: Material Decay, Labor
    Unrest, and the Prehistory of the Time Capsule, 1876--1914,"
    Winterthur Portfolio 45, no. 1 (Spring 2011): 3,
    doi:10.1086/658932. ↩︎

  4. Yablon, "Encapsulating the Present," 13. ↩︎

  5. Kenneth Murchison, "Prohibition and the Fourth Amendment: A New
    Look at Some Old Cases," The Journal of Criminal Law and
    73, no. 2 (Summer 1982): 482, doi:10.2307/1143105. ↩︎

  6. Murchison, "Prohibition and the Fourth," 483. ↩︎

  7. Osmond Fraenkel, "Concerning Searches and Seizures," Harvard
    Law Review
    34, no. 4 (February 1921): 376, ↩︎

  8. Ex parte Jackson, 96 U.S. 727 (1878). ↩︎

  9. Fraenkel, "Concerning Searches," 383. ↩︎

  10. Christopher Diffee, "Sex and the City: The White Slavery Scare
    and Social Governance in the Progressive Era," American Quarterly
    57, no. 2 (June 2005): 420, ↩︎

  11. Weeks v. United States, quoted in Murchison, 420. ↩︎

  12. Diffee, "Sex and the City," 433. ↩︎

  13. Murchison, "Prohibition and the Fourth," 420. ↩︎

  14. Kathryn W. Kemp, "The Dictograph Hears All': An Example of
    Surveillance Technology in the Progressive Era," The Journal of
    the Gilded Age and Progressive Era
    6, no. 4 (July 2010): 409, ↩︎

  15. Kemp, "The Dictograph," 409. ↩︎

  16. Kemp, "The Dictograph," 412. ↩︎

  17. Kemp, "The Dictograph," 409. ↩︎

  18. Kemp, "The Dictograph," 412. ↩︎

  19. Kemp, "The Dictograph," 415. ↩︎

  20. Kemp, "The Dictograph," 416. ↩︎

  21. Kemp, "The Dictograph," 416. ↩︎

  22. "The Dictograph Hears All," The New York Times, December 1,
    1910, quoted in Kemp, "The Dictograph," 416. ↩︎

  23. Clarence Darrow's autobiography, quoted in Kemp, "The
    Dictograph," 416. ↩︎

  24. Murchison, "Prohibition and the Fourth," 480. ↩︎

  25. Kemp, "The Dictograph," 416. ↩︎

  26. The dictograph would later be used to prosecure Clarence Darrow
    himself; see Darrow v. Dictograph in Kemp, "The Dictograph,"
    416-417. ↩︎

  27. Kemp, "The Dictograph," 414. ↩︎

  28. Kemp, "The Dictograph," 420. ↩︎

  29. Kemp, "The Dictograph," 420. ↩︎

  30. Kemp, "The Dictograph," 420. ↩︎

  31. Kemp, "The Dictograph," 409. ↩︎

  32. Kemp, "The Dictograph," 409. ↩︎

  33. Ivan Greenberg, Surveillance in America: critical analysis of
    the FBI, 1920 to the present
    (Lanham, MD: Lexington Books, 2012),
    5, digital file. ↩︎

  34. Greenberg, Surveillance in America, 6. ↩︎

  35. Greenberg, Surveillance in America, 6. ↩︎

  36. Greenberg, Surveillance in America, 7. ↩︎

  37. Greenberg, Surveillance in America, 7. ↩︎

  38. Greenberg, Surveillance in America, 7. ↩︎

  39. Richard Polenberg, quoted in Greenberg, Surveillance in
    , 54. ↩︎

  40. Richard Powers, quoted in Greenberg, Surveillance in America,
    7. ↩︎