The notion that only a postman will see a piece of mail is based on a partial understanding of the mail handling process; a Norman Rockwell vision of what a modern postal delivery system entails. In the US, the exterior of each piece of mail is photographed. And the information gleaned from these photos, such as religious and political affiliations, is more intimate than people realize. These data have been described by a former FBI agent as “easily abused” and a “hidden treasure”. Comparing the mail covers to National Security Agency surveillance exposed during the Edward Snowden scandal, renowned security technologist Bruce Schneier once called them “basically… the same thing.”
The letter to Barksdale is not just meant to tell the chief inspector, an official who oversees dozens of field offices and labs and an army of law enforcement and other technical resources, things he probably already knows. Instead, they would like him to just finish the process.
The USPS declined to comment.
There is no federal statute that requires the post office to allow envelope mail. The Postal Service authorizes this through its own regulations, consistent with interpretations of what is more 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 in use, known as an “expectation of privacy.” And while intercepting electronic metadata, as the senators point out, generally requires a court order, because the courts have decided that Americans cannot reasonably expect the information to be private: Judges haven’t ruled in exactly the same way in cases involving physical pieces of mail. There are many complexities involved, but in at least one major case, the judges pointed to another legal test, known as the “plain sight doctrine,” which applies to evidence that investigators can clearly see.
“The risk of abuse of mailing covers is not theoretical,” the lawmakers write in the letter.
The history of abuse of mailing covers, as lawmakers point out, is long. One famous incident occurred in the 1970s, when a 15-year-old girl mistakenly wrote to the Socialist Workers Party, a communist organization that strongly supports Cuba, while investigating a school assignment involving the Socialist Labor Party. The teenager was thoroughly investigated by the FBI, which even sent an agent to her school.
The senators point out that the Church Committee, which was formed in 1975 to investigate US intelligence abuses, discovered that the Central Intelligence Agency had photographed “the exterior of more than 2 million pieces of mail” while opening hundreds of thousands more, that they belonged to “prominent activists and authors”.
In fact, the senators say, modern fears of postal abuse date back to the Founding Fathers themselves, who denounced what Thomas Jefferson called “post office infidelities,” surveillance that generally forced those who disagreed with the occupation British to resort to encrypted messages. they wished to keep private. These messages include, the legislators note, “an early proposal for the Bill of Rights.”
The lawmakers are asking Barksdale to stop allowing mail covers without the permission of a federal judge, “except in emergencies.” And to increase transparency, they say, the post office should start publishing annual statistics on the mail covers it allows. It hasn’t since at least 2014 (along with a report from the Inspector General).
“While mailing covers do not reveal the content of correspondence, they can reveal deeply personal information about Americans’ political leanings, religious beliefs, or causes they support,” the senators write. Consequently, any such abuse is a threat, they say, not only to the right of Americans to associate politically and religiously, but also to assemble “without the government watching.”
