Now That Snail Mail Has Pretty Much Been Rendered Obsolete, Congress Is Finally Getting Serious About Terminating Postal Surveillance

Privacy

from the estate-of-Ed-McMahon-offers-its-support dept

For as long as the United States Postal Service (USPS) has had scanners, the government has been able to obtain information about senders and recipients. Under the Third Party Doctrine, information shared with third parties (in this case, shared with the government directly) is the government’s to have. No warrant needed.

The USPS has been in the “mail cover” business for as long as people have written addresses on envelopes and packages that senders hoped to have delivered to recipients. Automated scanning wasn’t meant to increase surveillance of Americans. It was a necessity for sorting mail.

But just because the USPS is scanning to/from addresses to make mail delivery more efficient isn’t supposed to be a direct invitation to other government agencies to access information collected for the sole purpose of allowing the USPS to better perform its tasks.

But that’s what it became: yet another way for the government to indiscriminately collect data on citizens without ever having to inform courts or US mail customers this information was being collected at will by other government agencies.

Stamp prices continue to rise as fewer people than ever feel the USPS is essential to their communications. While this does make “mail covers” less useful to law enforcement agencies, it will continue to exist as long as the USPS remains in business. There is no oversight of the government’s use of mail cover information. Agencies just ask for scans of mail and the USPS hands it over. And now, long after this program has had the ability to affect millions of Americans, federal legislators are seeking to end it, as Dell Cameron reports for Wired.

The letter, first obtained by WIRED, is signed by an equal number of Republicans and Democrats, including senators Ron Wyden, Rand Paul, Edward Markey, Cynthia Lummis, Elizabeth Warren, Mike Lee, Cory Booker, and Steve Daines. It opens with a warning about a request devised by the postal service known as a “mail cover,” which the lawmakers say “threatens both our privacy and First Amendment rights.” The lawmakers equate mail covers with the “unchecked government monitoring” of Americans’ mail.

All of this is true. And all of this has long been part of the (barely) secret history of the post office. It’s not that the program shouldn’t be terminated or at least subjected to more rigorous oversight. It’s that the program is of such limited utility in this day and age, it’s likely to be relinquished without a fight.

Preventing government agencies from gathering to/from snail mail metadata in bulk isn’t going to prevent more serious incursions on rights, like bringing in drug dogs to sniff mail without even the barest minimum of reasonable suspicion, or interdicting packages just because the government thinks certain packages seem a bit sketchy.

That being said, bulk collection of to/from addresses allows the government to infer personal connections — something that can wander into First Amendment territory, even if the collection/distribution avoids the Fourth Amendment by utilizing the Third Party Doctrine. For sure, the program should be terminated, if for no other reason than there’s no legal mandate forcing the USPS to perform this collection, much less share it with other government agencies wielding nothing more than a piece of paper demanding access — a data request requiring no review by the judicial system, much less any officials in the agencies making these requests.

There is no federal statute requiring the post office to allow mail covers. The Postal Service authorizes this through its own regulations, conforming to interpretations of what is most permissive under the Fourth Amendment. Those protections were strengthened in 1967 as a result of a US Supreme Court ruling that established a legal test still used known as “expectation of privacy.” And while intercepting electronic metadata, as the senators note, generally requires a court order—because the courts have decided Americans do reasonably expect that information to be private—they haven’t exactly ruled the same way in cases involving physical pieces of mail. There are many intricacies involved, but in at least one major case, judges pointed to another legal test known as the “plain view doctrine,” which applies to evidence investigators can clearly see. 

The mail cover program is definitely problematic. But it would have been way more useful to terminate it years ago, rather than now, when most data collected is going to be generated by junk mail senders and their unwilling recipients. By all means, kill the program. But then take aim at the far more disturbing rights violations aided and abetted by third parties handling US citizens’ mail and packages.

Filed Under: congress, snail mail, surveillance, usps