The New York Times http://nyti.ms/1Dnh0RF recently published an article in which it was reported that the US Government that had nearly 50,000 requests to the US Postal authorities to intercept mail approved during 2013. According to the report, the surveillance program, known as “mail covers,” has been in place for many years. What essentially occurs is that the law enforcement agencies or the Postal Inspection Service make the initial request and postal workers then record all the information on the outside of the envelope before delivering the mail. The scope of the intercepts increased significantly in 2013 raising concerns, as cited in the Times article, about how little oversight there is of the program and how postal workers are called to make the ultimate decision about the legitimacy of the request.

Such intercepts of mail may seem at first blush not to involve a violation of constitutionally protected rights as the mail is not opened by postal workers—which would absolutely require a warrant. However, when one considers the Supreme Court jurisprudence on constitutionally protected searches, the answer is not quite so clear. Recall that what is being done here is targeting an individual’s mail in order to gain intelligence information about that target’s communications, which may then be used to draw other conclusions or even to obtain warrants. The discussion in United States v. Jones, 132 S. Ct. 945 (2012), the landmark GPS case, is very instructive on this point particularly since Jones involves the collection of data. As Justice Sotomayor wrote in her concurring opinion, “[m]ore fundamentally, it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information

voluntarily disclosed to third parties.” This reasoning which extends accepted Fourth Amendment thinking which centers on the expectation of privacy as set forth in Katz v. United States, 389 U.S. 347 (1967) based on the invasion of your private space. This would allow a constitutionally protected privacy right to things that lie outside your private space such as the writing on the outside of your correspondence, which although voluntary disclosed to a third party, the postal service, is not intended for prying eyes.

Moreover, these “intercepts” of the mail may run afoul of federal law. Under 18 USC § 1703 any postal employee who “unlawfully secretes, destroys, detains, delays, or opens any letter….shall be [subject to a fine].” How these scans are actually done and whether the mail is removed from the ordinary stream of mail may bear on any such application, but it is definitely worth considering.

In the end, these new revelations are just further confirmation of the US government’s ongoing efforts to obtain information on individuals’ outside the judicial framework laid out for constitutional searches. The government continues to use tools that are subject to little or no oversight to collect information and in effect conduct surveillance on US citizens and thereby further encroach on privacy.  In historical context, the infringement into the mail bag seems particularly troubling given the founding fathers’ concerns about the absolute power of the monarchy and its ability to encroach on the life of the citizenry when they wrote that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated…”

By Ivan Mercado