Researcher and Writer in Washington, DC

The Postal Service Surveillance Controversy: Questions Need Answered

Source: Smithsonian National Postal Museum

Source: Smithsonian National Postal Museum

It is not just the National Security Agency that is keeping a close eye on the public. The Postal Service helped law enforcement authorities surveil nearly 50,000 individuals and groups this past year, according to the New York Times.

Under the “mail cover” program, which has been around for roughly a century, law enforcement officials may trace a suspect’s mail using data collected from the outside of an envelope or a parcel, including sender and recipient, addresses and where the mail entered the postal system. Law-enforcement officials obtain mail covers by placing a request with the Postal Inspection Service, who are in charge of vetting requests and asking the Postal Service turn over the data. (Opening first-class mail requires an additional step: obtaining a warrant.) The program began as a tool used mostly by the Inspection Service and federal law enforcement agencies. It since has been opened up to state and local authorities.

The Inspection Service, which polices the mail for kiddie porn, illegal lotteries and other perfidy, is not administering the program very well. An inspector general’s report found numerous administrative screw-ups. About 21 percent of approved mail-cover requests were granted without written authorization, and the Inspection Service failed to annually assess the program for policy compliance. This is unsettling news for anyone who cares about privacy. The First Amendment protects an individual’s freedom to communicate and associate with others. Government surveillance plainly diminishes the exercise of that right.

For certain, the mail-tracking controversy underscores the importance of independent inspectors general and the Freedom of Information Act. It was the USPS IG who conducted the audit and refused the Postal Service’s request to keep it hidden from the public. FOIA helped the Times pry loose additional information about the mail cover program.

Despite the revelations, at least three big questions remain unanswered.

The first concerns the growth of this program: why did mail cover approvals skyrocket from about 8,000 per year between 2002 and 2012 to 49,000 in 2013? Is the Inspection Service, to venture a charitable hypothesis, simply becoming more efficient at processing these requests? Are local law-enforcement agencies catching on to this program, much as they did with the federally authorized asset seizure program? Or are other factors at play?

This leads to a second question worth a public response: how many law-enforcement requests for mail covers were denied? Knowing this number would clarify whether the Inspection Service is rubber-stamping these requests. Which it may well be, seeing as it authorized a renegade sheriff and prosecutor to use mail tracking to investigate a politician who dared criticize them. A former FBI agent has said the mail cover program is “so easy to use…you don’t have to go through a judge….You just fill out a form.”

The IG report on this program was first released in June, and Politico immediately ran a story on it. The New York Times covered the topic in July, and further revealed that USPS is digitally recording the information of every piece of mail, sent by everyone, creating a vast data trove. This mass data collection goes way beyond the mail-cover program approved by federal courts in the 1978 decision U.S. v. Choates. Months have passed, and not a single congressional hearing has been held on the subject. Nor has any legislation been introduced to reign in the practice. The president has done nothing. All of which prompts a third question: Why are our elected officials not doing anything about the mail-cover program?

(A version of this op-ed previously was published at Reason.com.)

Kevin R Kosar is the Director of the Governance Project and a Senior Fellow at the R Street Institute.

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