Analysis by Kevin Kosar Nov 19, 2014 issues: Regulatory Reform
By law, first-class mail is sealed against inspection, meaning that government officials may not open it without first getting a warrant from a judge. A citizen would be forgiven for imagining that this law ensures his or her mail is private, but that’s not quite true.
For one thing, other classes of mail do not have the same privacy protection as first-class mail. Additionally, thanks to GovernmentAttic.org, we now know the federal government has established three broad exceptions to first-class mail’s “sealed against inspection” protection.
A 2007 U.S. Department of Justice letter lays out the circ*mstances under which mail may be opened without a warrant.
First, it has long been recognized that the Fourth Amendment permits the warrantless opening of mail under “exigent circ*mstances.” The Supreme Court has stated that “[t]he need to protect or preserve life or avoid serious injury is justification” for a warrantless search…. The Postal Service informs us that “exigent circ*mstance” searches typically are initiated when a postal inspector observes a suspicious package. Packages may be suspicious, for example, because they are vibrating, making noises, or leaking suspicious substances…. (See 39 CFR 233.11.)
Second, the Fourth Amendment permits the warrantless searching of mail entering or leaving the United States…. Congress specifically has authorized the warrantless search of mail at the border, although some of those provisions place restrictions on the reading of correspondence. See, e.g., 19 U.S.C. § 1583(a)(l) (permitting warrantless search of mail of domestic origin transmitted for export … and foreign mail transiting the United States”), (c)(1)-(2) (permitting search of first-class mail weighing more than 16 ounces if there is reasonable cause to believe that the mail contains specified contraband, merchandise, national defense or related information, or a weapon of mass destruction, but requiring a judicial warrant or consent to read any correspondence such mail contains)….
Third, provisions in the Foreign Intelligence Surveillance Act of 1978 (“FISA”), as amended, 50 U.S.C. § 1801 et seq., specifically authorize the Attorney General to conduct physical searches of mall without prior judicial authorization in certain circ*mstances. Section 304(e) of FISA, 50 U.S.C. § 1824(e), provides that the Attorney General, under certain circ*mstances, may approve the execution of an emergency physical search of property, including property that “is in transit to or from an agent of a foreign power or a foreign power,” id. § 1824(a)(3)(B), so long as the Attorney General subsequently obtains an order from the Foreign Intelligence Surveillance Court authorizing the search….
The DOJ letter may be read in full here (see pages 12-15.) It is worthy of close examination, as it defends a presidential signing statement that is at odds with the plain language of a 2006 act of Congress.
The expectation that personal correspondence should remain private is centuries old. In the 1750s, for example, Postmaster Benjamin Franklin instituted a policy forbidding postmasters from reading individuals’ letters.
So it is dismaying that the Postal Service, the Inspection Service and the DOJ are not upfront with the public as to when they feel fit to open private mail. Indeed, the above DOJ letter came to light because GovernmentAttic.org used the Freedom of Information Act to shake it loose from DOJ. And this policy letter was written only because a pesky congressman demanded an answer from DOJ.
President Obama promised his administration would establish “an unprecedented level of openness” and transparency in government. In this instance, that standard was not met.
Featured Publications
Analysis Alternatives to Arrest, Criminal Justice and Civil Liberties, Policing, Pretrial, Prosecution
Spotlight on Criminal Justice: National Women’s History Month and National Criminal Justice Month – March 2024
Christi M. Smith March 20, 2024
Analysis Technology and Innovation, Telecom
Battle of the Bands: Dueling Interests in Spectrum
Jonathan Cannon March 19, 2024
Analysis Cyber Threats, Cybersecurity Policy, Data Security and Data Privacy, Federal Government Affairs
The Quest for “Reasonable Security” Part Two: Using International Law, Federal Legislation, and Executive Orders to Illuminate Reasonable Security
Steven Ward March 19, 2024
Real Solutions Federal Government Affairs, Insurance, Insurance Regulation, Risk Transfer
Time to Shine Light on Dark Third-Party Litigation Funding
Jerry Theodorou March 19, 2024
In the News Federal Government Affairs, Online Content Policy, Technology and Innovation
Biden’s support for potential TikTok ban risks backlash from young voters
Shoshana Weissmann March 19, 2024 The Hill
In the News Cyber Threats, Cybersecurity Policy, Data Security and Data Privacy, Federal Government Affairs
How companies describe cyber incidents in SEC filings
Amy Chang March 19, 2024 CybersecurityDive
Op-Eds California, State Policy
We told you so about ill effects of the COVID response
Steven Greenhut March 19, 2024 Orange County Register
In the News Online Content Policy, State Policy, Technology and Innovation, Western
Colorado Bill Would Force Social Media Platforms To Ban Users Who ‘Promote’ Marijuana, Psychedelics And Hemp Products
Shoshana Weissmann March 19, 2024 Marijuana Moment
News Cannabis Harm Reduction, Harm Reduction, Opioid Harm Reduction, Tobacco Harm Reduction
Put politics aside and apply harm reduction for all substances
Ann Phelan March 18, 2024
Op-Eds Artificial Intelligence, Federal Government Affairs, Technology and Innovation, Telecom
The government can’t stop those AI robocalls, so stay skeptical
Chris McIsaac March 5, 2024 The Hill