Are there any lawyers on here that can comment on the legality of this? It sounds like this is against article four of the US constitution.
Generally, searches are considered "unreasonable" if someone has an expectation of privacy in that context. In general, this creates a divide between private and not-private. The inside of your home: private, and protected. Anything visible from other peoples' property? Not private, not protected.
Mail tracking involves looking at the outside of your mail. It involves looking at information that is not only not private, but must necessarily be exposed in order for mail delivery to function. Hence its outside the 4th amendment. The government doesn't have to "search" your mail to be track it--they just have to get USPS to hand over information it has to necessarily collect incident to its business.
For the opposing view, Google "mosaic theory." As with many debates, this one comes down to a conflict between people who think the Constitution means what it says, and those that believe in "living constitutions" where we should insert things into the Constitution that aren't there, "because change."
Not sure if sarcastic, but how is it possible not to do this?
e.g. the 1st Amendment grants the right to a "free press". Are there really constitutional literalists who believe that because the word "press" as used in the 18th century contemplates the operation of a machine that imprints ink onto dead trees that we should not consider wsj.com within the scope of its protection?
Or consider that the Constitution uses male-gendered pronouns to describe the requirements and duties for the offices of Congress and the President. Are we then to infer that only men can hold these offices?
It seems to me that everybody interpolates the Constitution to some extent, and the difference is a question of degree. So quite frankly I'm puzzled how it can be an accusation against someone that they interpret the Constitution freely, as if the real moral high ground is a the belief that e.g. judicial review doesn't exist.
This is an awful and inaccurate characterization of the position. An idea that both Alito and Sotomayor share common ground on can't possibly be as simple as the picture you present. But don't take my word for it; take Orin Kerr's.
http://volokh.com/2012/01/23/whats-the-status-of-the-mosaic-...
The fourth amendment is certainly the reason these letters are not being opened. The information inside these letters is private, and not known to the postal service. On the other hand, the address printed on the outside of the letter is possibly public information, and certainly information that the service has access to.
One thing I always wonder about in these situations is a duty to keep a "shared secret". Are there situations when we can legally expect a company to fight for our privacy, or are we always relying on their good nature?
I think it depends on the definition of "papers, and effects" in 4A (I'm not an attorney so I really don't know the specifics). One could certainly make the argument that under certain circumstances you can disclose information to certain parties while maintaining a reasonable expectation of privacy. I would imagine this is the basis of doctor-patient and attorney-client confidentiality but that's just assumption on my part.
That's one of the issues that gets lost in the shuffle: the 4th amendment was written against the backdrop of the almost unlimited power of the common law subpoena. When the government demands a service provider turn over someone's electronic records, that doesn't fall within the 4th amendment (it's not a search), nor does it fall within the 5th (it's not self-incrimination).
Can a company that hands over information "without a fight" be sued for a breach of some implicit trust? If not, what about explicit promises or contracts? If at some point the company is not allowed to freely hand over the information, is the government still allowed to receive it in breach of the confidentiality arrangement?
And what about companies giving this information to other non-governmental third parties? In a lot of the contracts I've read and signed, companies have explicitly informed me of circumstances in which (and people to whom) my information may be disclosed. What does this imply about people not named, and what is implied by a contract not having such a clause?
I'm don't think that that's the end of the analysis for the interaction between contracts and the third party doctrine, though. But I don't know enough to speculate.
The Code of Federal Regulations section governing mail covers seems to indicate that the requirements for requesting a mail cover create absolutely no protections for USPS customers. For purposes relevant to the article, section 233.3(e)(2) is the most interesting. All that is necessary is to "specify the reasonable grounds" that national security is endangered, a fugitive is involved, a felony might be involved, or that forfeitable property (probably cash and/or drugs) needs to be identified. The request need not be restricted by person or place. If I think Walter White is cooking meth, the DEA can literally ask for a cover of all mail that passes through the USPS system, and the Chief Postal Inspector (or either of 2 possible designees) could give it to them for 30 days. Only communications KNOWN to be between a subject and his attorney are exempted.
Sections CFR 233.3(f)(2) and ASM 274.5 imply that the USPS cannot record data from the outside of mail in the absence of a mail cover order or other prescribed reason. That, in turn, implies that since (according to media reports) they have been doing it continuously since at least 2001, the head of DHS could simply be requesting a mail cover monthly, to support investigation of unspecified threats to national security. The CPI is required to keep those mail cover records for 8 years, though the data the send pursuant to those mail covers would be governed by the receiving agency's rules.
I would argue that the protections the USPS already has in place for the prevention of mail tampering generates a reasonable expectation of privacy in the external appearance of mail entrusted to the USPS. Since the mail must be placed in approved, closed, and statutorily-protected receptacles, are protected from viewing and tampering in transit, and delivered to [potentially lockable] receptacles, the mail itself is never in public view. There is no vantage point from which an ordinary member of the public could see and record the external mail data included in a mail cover. When I write a letter and mail it, I don't expect my neighbors to know to whom it was sent.
The courts have determined otherwise. In theory, the only way to trigger reconsideration would be to follow around postal delivery trucks, photographing and replacing mailbox contents. When you get arrested, bring up the precedent in your defense.
Mail exteriors are either private and confidential, and thus worthy of "reasonable search" protections, or they are not, and anyone should be able to photograph your mail. You can't have it both ways.
To me, this article says what we know anyway, the USPS ain't perfect. On the scale of things to worry about with your mail, this is not one of them. Even if the USPS wanted to create the worlds best spy system they would find a way to screw it up. Don't fret about this, folks.
Fret about: The crook who steals your parcel from your porch; the person who skims your phone number off your Amazon parcel; the neighborhood junkie who uses mail to receive drugs and then doles them out to your kids; the nosey neighbor who steals your identities; the person who forwards your mail without you realizing it.
A mechanism for dragnet surveillance with practically nonexistent oversight is far more threatening to me than individual criminals. And while you may have some respect for yourself and your profession, you don't really have anything to do with this. The images are processed at the hub of the system built to automatically sort the mail, and diverting those images to permanent storage or a network pipe requires nearly zero additional capital investment.
The only regulatory hurdle to prevent any cop in the U.S. from getting copies is a politely worded request, which does not necessarily need to be detailed or truthful. And once one cop has it, nothing prevents him from sharing it. There are already several nationally accessible systems in the U.S. run by a single county sheriff's department, sometimes as a means of evading federal data retention rules. We already know from media reports that such systems can be abused. Cops look up themselves, friends, enemies, family members, ex-spouses or ex-lovers, celebrities, journalists, politicians, or whomever else strikes their fancy.
This bothers me for the same reason that widespread e-mail metadata collection bothers me. It is done with callous disregard to the expectation I have as a free man that if I live my life without any criminal intent, I should be largely invisible to the enforcer class. Innocents should have blank records in all those databases.
Instead, I feel that everyone now has an individually numbered target painted on the backs of their heads. Any tool that can be used for legitimate police work can also be used for political oppression. I have no doubts whatsoever that the mail cover program has been used for purposes beyond fighting crimes with individualized suspicion against known suspects.
<< I should be largely invisible to the enforcer class.
The genie is out of the bottle. My health suffers if I think and express myself like you just did, although very eloquently. My roots are academic but my current state is prole. (ever read Fussell's Class?" [1] It is WONDERFUL!)
<< far more threatening to me than individual criminals.
I disagree. If you ever lose a relative to a gun or a drunk or cocaine, then storing a googol of data on me is never as threatening.
<< Any tool that can be used for legitimate police work can also be used for political oppression.
Maybe because I am political only one day of the year (or 2, depending), the day I vote, I do not feel oppressed.
[1] http://www.amazon.com/Class-Through-American-Status-System/d...
You do not feel oppressed until you are the target of political oppression or personal persecution. Then you will likely understand why many folks are just as or more concerned about pervasive data collection than they are about random violent crazies or unfortunate events.
> The genie is out of the bottle.
The genie is out. However, -if we work at- it we do get to control how it behaves. (Remember reading about how the "mandatory quartering of troops" genie had been let out of the bottle ages ago in English territories? Do you also remember how the American Rebels muzzled that particular genie in their country?)